Marymatha Construction Company v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: ## THE HONOURABLE MR.JUSTICE V.CHITAMBARESH MONDAY, THE 30TH DAY OF JANUARY 2012/10TH MAGHA 1933 ## WPC.No. 26256 of 2011 (F) ------------------------- PETITIONER(S): ------------- MARYMATHA CONSTRUCTION COMPANY MARYMATHA SQUARE, ARAKUZHA ROAD MUVATTUPUZHA - 686 661, REPRESENTED BY ITS, PARTNER SIBU CHERIAN, RESIDING AT, MADECKAL HOUSE MUVATTUPUZHA - 686 661. BY ADVS.SRI.MURALI PURUSHOTHAMAN SRI.DEEPU LAL MOHAN SMT.S.LEENA RESPONDENT(S): - -------------- 1. STATE OF KERALA - REPRESENTED BY THE SECRETARY TO GOVERNMENT WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001. 2. THE CHIEF ENGINEER (IRRIGATION AND ADMINISTRATIION), WATER RESOURCES, DEPARTMENT CONVENER, CHIEF ENGINEER'S PRE QUALIFICATION COMMITTEE, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM - 695 002. 3. THE SUPERINTENDING ENGINEER, KUTTANAD DEVELOPMENT CIRCLE, CHENGANNUR - 689 121. 4. THE KERALA STATE TRANSPORT PROJECT, JAGAD BUILDINGS, KESTON ROAD, NANDANCODE KAWDIYAR.P.O, THIRUVANANTHAPURAM - 695 010. REPRESENTED BY ITS PROJECT DIRECTOR. 5. THE EXECUTIVE ENGINEER, KERALA STATE TRANSPORT PROJECT DIVISION PUBLIC WORKS DEPARTMENT, PONKUNNAM KANJIRAPPALLY.P.O, KOTTAYAM - 686 507. 6. THE ASSISTANT EXECUTIVE ENGINEER, KERALA STATE TRANSPORT PROJECT DIVISION PUBLIC WORKS DEPARTMENT, PONKUNNAM KANJIRAPPALLY.P.O, KOTTAYAM - 686 507. W.P.(C) No.26256 of 2011 : 2 : 7. M/S. E.K.K AND COMPANY, 2ND FLOOR, MUNICIPAL BUILDING, PERUMBAVOOR - 683 542 REPRESENTED BY ITS MANAGING PARTNER SRI.E.K.K. MOHAMMED. R,R7 BY SRI.K.L.VARGHESE (SR.) R, R1 TO R6 BY GOVERNMENT PLEADER SMT.ROSE MICHAEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX IN W.P.(C) NO.26256 OF 2011 ## PETITIONER(S) EXHIBITS EXHIBIT-P1-TRUE COPY OF THE RE-TENDER NOTICE NO. D2-801/2010/KDC DATED 28/03/2011 ISSUED BY THE 3RD RESPONDENT. - EXHIBIT-P2-TRUE COPY OF THE MINUTES OF THE PRE QUALIFICATION COMMITTEE ME2ETING HELD ON 08/06/2011 - EXHIBIT-P3-TRUE COPY OF THE LETTER NO.D5-682/2010/KDC DATED 09/06/2011 ISSUED BY THE 3RD RESPONDENT TO THE 7TH RESPONDENT. - EXHIBIT-P4-TRUE COPY OF THE LETTER NO.D5-682/2010/KDC (1) DATED 16/06/2011 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT - EXHIBIT-P5- TRUE COPY OF THE W.P(C)NO.16123/2011 DATED 15/06/2011 FILED BUY THE 7TH RESPONDENT. - EXHIBIT-P6- TRUE COPY OF THE JUDGMENT DATED 18/08/2011 OF THIS HONOURABLE COURT IN W.P(C)NO.16123/2011 - EXHIBIT-P7- TRUE COPY OF THE LETTER NO. D5-682/2010/KDC (1) DATED 22/09/2011 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. - EXHIBIT-P8- TRUE COPY OF THE MINUTES OF PRE QUALIFICATION COMMITTEE MEETING HELD ON 20/09/2011. - EXHIBIT-P9- TRUE COPY OF THE CONDITIONS OF CONTRACT ATTACHED TO THE AGREEMENT REGARDING EXECUTION OF ROAD WORK UPGRADATION WORKS OF THRISSUR – KUTTPURAM ROAD (KM 19.620 TO KM. 42.000) – ISTP IV B (1) - EXHIBIT-P10- TRUE COPY OF THE APPLICATION DATED 29/09/2011 SUBMITTED BY SRI. GEORGE MATHEW BEFORE THE 5TH RESPONDENT. - EXHIBIT-P11-PHOTOCOPY OF LETTER NO.PWD/KSTP/PMT/255/05 DATED 28.10.2011 ISSUED BY THE STATE INFORMATION OFFICER IN THE OFFICE OF THE FOURTH RESPONDENT. - EXHIBIT-P12-THE PHOTOCOPY OF THE LETTER NO.PNE/52/05 DATED 17.10.2011 ISSUED BY THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE 5TH RESPONDENT. - EXHIBIT-P13-THE PHOTOCOPY OF THE FULL TEXT OF THE GENERAL CONDITIONS OF CONTRACT AS WELL AS THE SPECIAL CONDITIONS OF CONTRACT ATTACHED TO THE AGREEMENT REGARDING EXECUTION OF ROAD WORK “UPGRADATION WORKS OF THRISSUR - KUTTIPURAM ROAD (KM 19.620 TO KM 42.000) - KSTP IV B (1)” W.P.(C) No.26256 of 2011 : 2 : ## RESPONDENTS' EXHIBITS EXT.R5(a) TRUE COPY OF THE REQUEST DATED 19.12.2008 EXT.R5(b) TRUE COPY OF THE APPROVED REQUEST OF THE EXECUTIVE ENGINEER, KERALA STATE TRANSPORT PROJECT DATED 8.1.09 EXT.R5(c) TRUE COPY OF MEMORANDUM OF UNDERSTANDING DATED 15.10.09 EXT.R5(d) TRUE COPY OF THE MINUTES DATED 2.7.10 EXT.R5(e) TRUE COPY OF THE GENERAL CONDITIONS OF CONTRACT AS PER 59 CALUSE DATED 5.7.2010 EXT.R5(f) TRUE COPY OF THE LR.NO.PNW/28/08 DATED 7.7.10 OF THE EXECUTIVE ENGINEER, KERALA STATE TRANSPORT PROJECT. EXT.R5(g) TRUE COPY OF THE MINUTES DATED 17.7.10 EXT.R5(h) 1 & (h) 2 TRUE COPY OF THE CONFIRMATION DATED 19.5.11 EXT.R5(i) TRUE COPY OF THE AGREEMENT CONDITION EXT.R5(j) TRUE COPY OF THE LETTER DATED 17.10.11 FROM THE PUBLIC INFORMATION OFFICER. EXT.R7(a) TRUE COPY OF CERTIFICATE DATED 10.2.2010 FURNISHED BY THE PETITIONER BEFORE THE RESPONDENTS' DEPARTMENT. - EXT.R7(a)(i) TRUE COPY OF COVERING LETTER DATED 18.10.2011 UNDER WHICH EXT.R7(a)WAS ISSUED. - EXT.R7(b) TRUE COPY OF LETTER DT. 25.3.2011 ISSUED BY THE 5TH RESPONDENT. - EXT.R7(b)(i) TRUE COPY OF CERTIFICATE DT. 25.3.2011 ISSUED BY THE FIFTH RESPONDENT AS PART OF EXT.R7(b) EXT.R7(c) TRUE COPY OF LETTER DT. 7.7.2010 ISSUED BY THE RESPONDENT. EXT.R7(d) TRUE COPY OF WORK ORDER DT. 25.1.2007 ISSUED TO THE PETITIONER BY COCHIN PORT TRUST. EXT.R7(e) TRUE COPY OF PROFORMA FOR THE CONFIRMATION OF COMPLETION CERTIFICATE. EXT.R7(f) TRUE COPY OF LETTER DT. 10.3.2007 ISSUED BY THE JOINT VENTURE TO COCHIN PORT TRUST. EXT.R7(g) TRUE COPY OF LETTER DT. 19.12.2008 ISSUED BY THE MAIN CONTRACTOR, M/S.GH VIJAPURA & CO. W.P.(C) No.26256 of 2011 : 3: EXT.R7(h) TRUE COPY OF REPLY LETTER DT. 8.1.2009 ISSUED BY THE FIFTH RESPONDENT. EXT.R7(i) TRUE COPY OF LETTER DT. 5.7.2010 ISSUED BY THE MAIN CONTRACTOR, M/S.GH VIJAPURA & CO. EXT.R7(j) TRUE COPY OF LETTER DT. 23.3.2011 ISSUED BY THE MAIN CONTRACTOR TO THE FIFTH RESPONDENT. EXT.R7(k) TRUE COPY OF CERTIFICATE DATED 28.12.2011 ISSUED BY THE FOURTH RESPONDENT. //true copy// ## P.S. TO JUDGE ## **V.CHITAMBARESH, J.** ------------------------------- ## **W.P.(C) No. 26256 of 2011** ------------------------------- **Dated this the 30[th] day of January, 2012** ## **J U D G M E N T** Ext.P8 proceedings by which the 7[th] respondent was held to be pre-qualified for the work of **'KUTTANAD PACKAGEFMP-Mitigation of flood in 5 Padasekharams in Group-9 of Kuttanad Region'** is under challenge. Ext.P1 is the re-tender notice inviting bids wherein it is stipulated as follows:- “Intending contractors/firms should have previous experience of completing at least one work having magnitude of Estimate PAC of Rs.3377.52 lakhs or above within the last five years.” The pre-qualification committee headed by the second respondent Chief Engineer had by Ext.P2 proceedings held that the 7[th] respondent is not pre-qualified for the work. The reason stated therein is that the percentage of participation of the 7[th] respondent as a Sub Contractor in another work was only 50% and hence did not satisfy the bench mark of Rs.3377.52 lakhs. The 7[th] respondent had preferred a representation dated 14.6.2011 to the pre-qualification committee and followed it by filing W.P.(C) W.P.(C) No.26256 of 2011 2 No.16123 of 2011 on the file of this Court culminating in Ext.P6 judgment. The operative portion of the judgment is as follows:- “4. Now that the case of the petitioner is that what is relied on to disqualify them is a typographical error and if Ext.P2 or P4 were examined, they would have been pre-qualified for the work notified by Ext.P1, I direct the second respondent to consider and pass orders on Ext.P6 representation filed by the petitioner. This shall be done as expeditiously as possible, at any rate, within three weeks from the date of production of a copy of this judgment along with a copy of the writ petition.” The pre-qualification committee after verifying the supporting testimonials produced along with the representation found that the 7[th] respondent is pre-qualified for the work. This is challenged by the petitioner who has submitted the second lowest bid in the tender. 2. The 7[th] respondent has filed a detailed counter affidavit asserting that he satisfies all the pre-conditions in view of the successful completion of the work - Additional Heavy Maintenance work of Ettumannoor - Ernakulam Road (RMC 47). Ext.R7(h) is the order according approval for sub-contracting 25% of the work in favour of the 7[th] respondent. Ext.R7(i) is the letter addressed by the principal contractor to sub-contract the remaining 75% work on back to back basis. Ext.R7(c) is the post W.P.(C) No.26256 of 2011 3 facto approval granted to sub-contract the remaining 75% work in view of the special circumstances arising therein due to failure of road way / carriage way and mass agitation from public. Ext.R7(b) is the post facto approval granted for the whole of the work which also contains the experience certificate of the 7[th] respondent in having completed the work successfully. 3. The petitioner contends that additional heavy maintenance work of Ettumannoor-Ernakulam road should not have been so sub-contracted. Therefore the experience certificate obtained has led to the 7[th] respondent being held to be pre-qualified unjustifiably. He draws my attention to Ext.P13 conditions of contract by which the work is permitted to be subcontracted to others. The petitioner contends that such subcontracting in full is prohibited which could at any rate be done only with the prior consent of the engineer as per Clause 3 of the Special Conditions of Contract contained in Ext.P13. 4. It may at once be noticed that the award of contract of additional heavy maintenance work of EttumannoorErnakulam road has not been challenged by the petitioner. The fact remains that the 7[th] respondent has successfully completed W.P.(C) No.26256 of 2011 4 the work as evident by Ext.R7 series. It is too late in the day for the petitioner to contend that the 7[th] respondent should not have been awarded the said work. The question as to whether subcontracting was proper or was done with the prior consent of the engineer cannot be considered at this distance of time. The conditions in Ext.P1 only speaks of 'previous experience' of completing at least one work having magnitude of estimate of PAC of Rs.3377.52 lakhs. The 7[th] respondent has undoubtedly crossed the bench mark going by Ext.R7 series in having completed the work of additional heavy maintenance work of Ettumannoor-Ernakulam road. 5. There is yet another factor which dissuades me from invoking the writ jurisdiction. The petitioner claims to be pre-qualified for doing the work on the basis of an earlier joint venture agreement with M/s. Jaisu Shipping Company (P) Ltd. Exts.R7(e) and R7(f) shows that the petitioner and M/s. Jaisu Shipping Company (P) Ltd. had done the work under separate agreements, separate bank guarantee, separate execution of work, separate payments and bills. The various steps of the execution of the contract between the petitioner and M/s. Jaisu W.P.(C) No.26256 of 2011 5 Shipping Company (P) Ltd. were clearly bifurcated by separate agreements. Therefore it is extremely doubtful whether the petitioner can claim to be an executant of work by joint venture in that strict sense. Even the dictum in **New Horizons Limited and Another v. Union of India and Others** (1995 (1) SCC 478) cannot come to the rescue of the petitioner under such circumstances. It would be reasonable to hold that the petitioner has only done the civil construction work leaving the rest of the work to be done by M/s. Jaisu Shipping Company (P) Ltd. The petitioner would then fall below the bench mark necessary to contend that he is pre-qualified to do the work now tendered. Moreover the petitioner has quoted 33% above the estimate whereas the 7[th] respondent has only quoted 31.09% above the estimate for the present work. I decline jurisdiction under Article 226 of the Constitution of India and dismiss the writ petition without any order as to costs. ## **V.CHITAMBARESH, Judge.** nj. ## **V.CHITAMBARESH, J.** -------------------------------------- W.P.(C) No. 26256 of 2011 ## **JUDGMENT** Dated:- 30[th] January, 2012 --------------------------------------