MIR REALTORS (P) LTD & TORAS SOLUTIONS PVT. LTD. v. THE KERALA WATER AUTHORITY & ORS.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **TUESDAY, THE 1ST DAY OF APRIL 2014/11TH CHAITHRA, 1936** ## **WP(C).No. 2760 of 2014 (T)** ## **---------------------------** ## **PETITIONERS:** **---------------------** ## **1. M/S. MIR REALTORS (P) LTD.,** - **DOOR NO. 41/2073, M.M. BUILDINGS, KALA BHAVAN ROAD, COCHIN - 682 018, REP. BY ITS MANAGING DIRECTOR MR. ARUN KUMAR.K.** **2. M/S.TORAS SOLUTIONS PVT. LTD., 1ST FLOOR, LALITHALAYA APARTMENTS, 5/29, PANCHALIAMMAN KOIL STREET, ARUMBAKKAM, CHENNAI - 600 106, REP. BY ITS AUTHORIZED SIGNATORY MR. ARUN KUMAR. K.** **BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE. ADVS. SRI.S.SUJIN, SRI.BIJOY CHANDRAN, SRI.RAJESH NAIR.** **RESPONDENTS:** **------------------------** ## **1. THE KERALA WATER AUTHORITY,** - **JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 033, REP. BY ITS MANAGING DIRECTOR.** **2. THE CHIEF ENGINEER (JICA PROJECT), OFFICE OF THE CHIEF ENGINEER, JICA ASSISTED KERALA WATER SUPPLY PROJECT, WATER WORKS CAMPUS, VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 033.** **3. M/S.MARY MATHA CONSTRUCTION COMPANY, MARY MATHA SQUARE, AARAKKUZHA ROAD, MUVATTUPUZHA, ERNAKULAM - 686 661, REP. BY ITS MANAGING DIRECTOR.** **4. M/S. ABHIRAM INFRA PROJECT (P) LTD., FLAT NO.1A/4, 8-2-618/2/2, R.K. RESIDENCY. ROAD NO.11, BANJARA HILLS, HYDERABAD - 500 034, REP. BY ITS MANAGING DIRECTOR.** **R1 & R2 BY SRI.V.V.ASOKAN, SENIOR SC, ADV. SRI.GEORGE MATHEW, SC. R3 BY ADVS. SRI.P.SHANES METHAR, SRI.G.S.REGHUNATH.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** **WP(C).No. 2760 of 2014 (T)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXHIBIT P1 : TRUE COPY OF THE TENDER NOTICE DATED 13.09.2013 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P2 : TRUE COPY OF THE ELECTRONICALLY PUBLISHED PRINT OUT SHOWING THE TENDER CLOSING DATE AND TIME AS 10.30 A.M ON 15.11.2013.** - **EXHIBIT P3 : TRUE COPY OF THE INSTRUCTION TO BIDDERS (ITB).** - **EXHIBIT P4 : TRUE COPY OF THE RECEIPT OF THE TENDER SUBMISSION WAS ACKNOWLEDGED ELECTRONICALLY BY THE 1ST RESPONDENT.** - **EXHIBIT P5 : TRUE COPY OF THE LETTER SHOWING THE ENDORSEMENT BY THE MANAGING DIRECTOR OF 1ST RESPONDENT.** - **EXHIBIT P6 : TRUE COPY OF THE COMMUNICATION DATED 23.12.2013 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P7 : TRUE COPY OF THE LETTER DATED 31.12.2013 SUBMITTED BY THE 1ST PETITIONER.** - **EXHIBIT P8 : TRUE COPY OF THE E-COMMUNICATION DATED 18.01.2014 ISSUED BY THE TENDERING AUTHORITY.** - **EXHIBIT P9 : TRUE COPY OF THE CERTIFICATE DATED 14.12.2012 ISSUED BY THE OWNER FOR 'EMERALD PARK'.** - **EXHIBIT P10 : TRUE COPY OF THE CERTIFICATE DATED 14.12.2012 ISSUED BY THE OWNER IN RESPECT OF 'JADE HEIGHTS'.** - **EXHIBIT P11 : TRUE COPY OF THE CERTIFICATE DATED 26.12.2012 ISSUED BY THE OWNER IN RESPECT OF 'PRAKRUTHI'.** - **EXHIBIT P12 : TRUE COPY OF THE GOLD RATED GREEN CERTIFICATE ISSUED IN NOVEMBER, 2010 ISSUED TO SCOPE INTERNATIONAL PVT. LTD, THE OWNER OF THE BUILDING CONSTRUCTED BY THE 2ND PETITIONER.** - **EXHIBIT P13 : TRUE COPY OF THE CERTIFICATE ISSUED BY SCOPE INTERNATIONAL (STANDARD CHARTERED).** - **EXHIBIT P14 : TRUE COPY OF THE SILVER RATED GREEN CERTIFICATE PRODUCED BY 3RD RESPONDENT IN CORE AND SHELL AREA.** - **EXHIBIT P15 : TRUE COPY OF THE PLATINUM RATED CERTIFICATE PRODUCED BY THE 4TH RESPONDENT.** - **EXHIBIT P16: COPY OF THE IGBC CONTAINING THE LEED GREEN RATED BUILDING.** **..........2/-.** **WP(C).No. 2760 of 2014 (T)** ## **RESPONDENT'S EXHIBITS:-** - **EXT.R1A COPY OF THE TECHNICAL BID DOCUMENTS SUBMITTED BY THE 4TH RESPONDENT ON 06/11/2013.** - **EXT.R1B COPY OF THE INFORMATION DOWNLOADED FROM THE WEB SITE OF INDIAN GREEN BUILDING COUNCIL (IGBC).** - **EXT.R1C COPY OF THE EVALUATION REPORT DATED 10/01/2014 ISSUED BY M/S.HABITAT TECHNOLOGY GROUP.** - **EXT.R1D COPY OF THE VERIFICATION CERTIFICATE DATED 16/01/2014 ISSUED BY M/S.HABITAT TECHNOLOGY GROUP.** - **EXT.R3A COPY OF THE PARTNERSHIP DEED DATED 01/04/2004.** - **EXT.R3B COPY OF THE ACKNOWLEDGMENT OF REGISTRATION OF FIRM DATED 14/05/1999 BY THE REGISTRAR OF FIRMS FOR M/S.MARY MATHA CONSTRUCTION COMPANY.** - **EXT.R3C COPY OF THE TENDER EXTENSION NOTICE PUBLISHED IN THE WEBSITE OF 1ST RESPONDENT ''TENDERWISARD.COM'', TENDER NO.10/2013-2014/CE-JICA.** - **EXT.R3D COPY OF THE REGISTRATION CARD ISSUED BY THE SUPERINTENDENT ENGINEER, PROJECT CIRCLE, MUVATTUPUZHA.** **EXT.R3E COPY OF THE DOCUMENT (CERTIFICATE DATED 09/03/2006 ISSUED BY ENGINEERING PROJECTS (INDIA) LTD.) PRODUCED BEFORE THE 1ST RESPONDENT.** - **EXT.R3F COPY OF THE DOCUMENT (COMPLETION CERTIFICATE DATED 04/03/2013 ISSUED BY ENGINEERING PROJECTS (INDIA) LTD.) PRODUCED BEFORE THE 1ST RESPONDENT.** - **EXT.R3G COPY OF THE DOCUMENT (CERTIFICATE DATED 04/03/2013 ISSUED BY ENGINEERING PROJECTS (INDIA) LTD.) PRODUCED BEFORE THE 1ST RESPONDENT.** - **EXT.R3H COPY OF THE CERTIFICATE ISSUED BY INDIAN GREEN BUILDING COUNCIL.** - **EXT.R3I COPY OF THE CERTIFICATE DATED 25/04/2009 ISSUED BY GCK ASSOCIATES.** - **EXT.R3J COPY OF THE CERTIFICATE ISSUED BY SAJEEV MATHEW & CO.** - **EXT.R3K COPY OF THE CERTIFICATE DATED 28/10/2013 ISSUED BY ALLIANCE REALTORS.** - **EXT.R3L COPY OF THE CERTIFICATE ISSUED BY LEELA SOFT PVT. LTD., PHASE III.** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. ## **W.P.(C)No.2760 OF 2014** ......................................................................... **Dated this the 1[st] April, 2014** ## **J U D G M E N T** The correctness and sustainability of Ext.P8 order, whereby the technical bid submitted by the petitioners has been rejected, is under challenge in this writ petition. 2. The sequence of events narrated in the writ petition shows that, pursuant to Ext.P1 tender notice dated 13.09.2013, floated by the Kerala Water Authority, the petitioners, who constituted a joint venture consortium, submitted their bid, with copies of the testimonials. The last date for submission of the bid was scheduled on 28.10.2013, on which date itself it was stipulated to be opened, but opening of the bid came to be adjourned to 15.11.2013. The credentials of the petitioners were explained, pursuant to which, the bid submitted by the petitioner was considered and as per Ext.P6 dated 23.12.2013, the petitioners were required to clarify certain aspects; particularly with regard to satisfaction of the conditions under Clause 16.1.1 and 16.1.2 of Ext.P1 tender conditions. The petitioners submitted Ext.P7 reply dated 31.12.2013, but allegedly without considering the facts and figures, the Technical Bid came to be rejected as **2** ## **W.P.(C)No.2760 OF 2014** per Ext.P8 dated 18.01.2014, which in turn is under challenge. 3. The main case projected by the petitioners is that, rejection of the petitioners' technical bid was only to extend undue favours to the 3[rd] respondent, whose tender has been decided to be accepted. So as to facilitate such exercise, the 4[th] respondent herein, who was also not qualified, was allowed to remain in the field, declaring as qualified and the 3[rd] respondent has been selected to be awarded with the work, which is sought to be intercepted by this Court. 4. Despite completion of service of notice to the 4[th] respondent, they have not chosen to appear before this Court. The respondent Water Authority has filed a Counter Affidavit, followed by an additional Counter Affidavit, producing copies of the relevant records. The 3[rd] respondent has filed similar affidavit, supported by I.A. No.3816 of 2014, producing some additional documents as well. 5. Heard Mr. N.N. Sugunapalan, the learned Senior Counsel appearing for the petitioners, Mr. V.V. Asokan, the learned Senior Counsel appearing for the Water Authority and Mr. G.S. Raghunadh, the learned Counsel appearing for the 3[rd] **3** ## **W.P.(C)No.2760 OF 2014** respondent at length. 6. The crux of the submissions made by the learned senior counsel for the petitioner is that, a differential treatment has been given in the case of the petitioners, in arriving at a finding that, the petitioners are not qualified to participate in the bid. It is stated that, the main dispute is with regard to the qualification of the 4[th] respondent. Since the 4[th] respondent is not qualified, even if the 3[rd] respondent stands qualified, it will turn to be the 'sole tender' which cannot be accepted by the Water Authority, in view of the involvement of huge public money. 7. With regard to the qualification of the parties concerned, the stipulations are as contained under Clauses 16.1.1 and 16.1.2 of Ext.P1, which read as follows:- ## _“_ _**16.1.1 Minimum size of building constructed during last 5 years:**_ _The bidder should have in the last five years successfully completed the construction of at least one high rise (multi storied) building not less than 25m height. Necessary certificate to prove above eligibility criteria should be attached with the tender in original and shall be from the owner of the_ **4** ## **W.P.(C)No.2760 OF 2014** _property and in case of Government Buildings, from the concerned departmental heads or Engineer not below the rank of Executive Engineer._ ## _**16.1.2 Minimum size of green building constructed during the last 5 years with green rating**_ _The bidder should have experience in construction of at least one green building with minimum Silver Rating. The building shall be multi storied with minimum 15 m height or total floor area not less than 5000 square metres.”_ There is no dispute with regard to the factual aspects in relation to Clause 16.1.1 and the challenge relates to the stipulation under 16.1.2. It is stated that, the petitioners stand qualified, by virtue of Ext.P12 certificate, whereby the petitioners stand certified as having set up a 'Green building' with the rating of 'GOLD', as discernible from Ext.P12; particulars of which have been given in Ext.P13. In the case of the 4[th] respondent, the certificate produced is Ext.P15, which does not refer to any construction effected by the said respondent; whereas it has **5** ## **W.P.(C)No.2760 OF 2014** been clearly stated in the certificate that it is only with regard to the intent to construct a 'Green building'. The said certificate was issued in February, 2012 and this being the position, it is contended that the respondent Water Authority ought not to have considered the 4[th] respondent as a qualified person, to be considered and proceeded with further. 8. The next point sought to be agitated is that the tender notification clearly stipulates that, it should be a 'multistoreyed' building with a minimum height of 50 metres, having the plinth area of 5000 sq.mtrs. This requirement is not satisfied by the 4[th] respondent, as these details are not discernible from Ext.P14, P15 or any other document. This being the position, the assertion made from the part of the third respondent in paragraph '3' of their counter affidavit that the 3rd and 4[th] respondents were technically qualified in the Bid is not liable to be accepted. It is also stated that the specific clarification given by the petitioners vide Ext.P7 in response to Ext.P6, particularly with reference to Sub-clauses (f) and (g) have not been considered and as such, the matter requires to be dealt with by this Court . **W.P.(C)No.2760 OF 2014** **6** 9. The learned Sr.Counsel for the petitioners further submits that the quote made by the petitioners is for Rs.32.8 crores, whereas the quote of the third respondent is to the tune of Rs.37.5 crores and that of the 4[th] respondent is Rs.40 crores. As it stands so, if the tender quoted by the petitioner was accepted, substantial extent of public money could have been saved, which however has been simply given a go-bye, while deciding to accept the bid of the third respondent, despite its being the sole tender, the 4[th] respondent not being actually qualified. Reliance is also sought to be placed on the decision of the Punjab and Haryana High Court in _**DD Industries and others vs. the State of Punjab and others** (CWP No.18881 of 2011)_ and also the verdict passed by the Orissa High Court (Division Bench) in _**M/s. Kalinga Order Supplier vs. State of Orissa and others (** W.P.(C)No.18418 of 2013)_ to the effect that, in the case of single tender, it is for the authority to go for re-tender, so as to save the public money. 10. The learned Sr. Counsel appearing for the Water Authority points out that the idea and understanding of the petitioners is thoroughly wrong and mis-conceived. The tender **7** ## **W.P.(C)No.2760 OF 2014** stipulation in Ext.P1, particularly under Clause 16.1.2 and also the detailed version as given in Ext.P3 'Instruction to the Bidders' clearly stipulates that the intending parties **should have constructed the** _**green building**_ of the requisite measurement and necessary certificate should have been produced for evaluation of the tender. Admittedly, the document produced by the petitioners is only Ext. P12, which only speaks about the **'operation and maintenance'** and nothing with regard to any construction. The particulars of the work undertaken by the joint venture partner/2[nd] petitioner have been dealt with in Ext.P13, which clearly shows that no construction was ever effected by the first petitioner or second petitioner and as such, the bid submitted by the joint venture team did not enable them to be declared as qualified in the Technical Bid and as such Ext. P8 is not assailable under any circumstance. 11. It is brought to the notice of this Court that the certificate produced by the concerned participant clearly shows that the date of commencement of construction of the building by the 4[th ] respondent was **28.07.2010** and that the same was **8** ## **W.P.(C)No.2760 OF 2014** completed on 16.02.2012. Since the height of the building was not mentioned therein, a clarification was sought for from the 4[th] respondent as per letter dated 03.12.2013 (forwarded on 04.12.2013) both by _**e-mail**_ and _**hard copy**_ . On receipt of the same, the particulars were furnished by the 4[th] respondent, as per communication dated 05.12.2013 (which was received in the office of the Water Authority on 09.12.2013.). The particulars forwarded clearly reveal that the height of the building was 28 metres, with actual area of 8901 Sq.metres. It was under similar circumstance, as in the case of the petitioners to whom Ext.P6 letter was issued on 23.12.2013 seeking for clarification to consider their credential , which in turn was replied by the petitioners as per Ext.P7 dated 31.12.2013. It was after considering the same that the petitioners' Bid was rejected as per Ext.P8. 12. The learned Counsel for the Water Authority submits that the petitioner's _**financial bid**_ was never opened and that the course pursued by the Water Authority is 100% transparent in all respects and placed the relevant files before the Court, along with a sealed cover containing the Price Bid submitted by **9** ## **W.P.(C)No.2760 OF 2014** the petitioner. The Financial Bids of only the qualified participants, i.e. 3rd and 4th respondents were opened and when it was found that the third respondent's bid was a better one, it was accordingly decided to be accepted. It is further stated that the project is being given financial assistance by Japan International Co-operation Agency ( _**JICA)**_ and that an agreement has necessarily to be executed on or before 06.04.2013, lest the fund should lapsed and further that 75% of work has to be completed on or before 31.07.2013, to meet the requirements as specified. 13. The learned Counsel appearing for the third respondent submits , with reference to the pleadings and materials on record, that the assertion made by the third respondent in their counter affidavit that their joint venture partner was 'M/s.Leela Soft.Pvt. Ltd.,' was an inadvertent mistake and that the joint venture partner was 'M/s.GCK Associates', who effected construction of the Green Building for the owner M/s.Leela Soft.Pvt. Ltd; and it is in favour of the owner of the building that Ext.P15 certificate was issued (which has been produced also as Ext.R3(h)). The factual particulars/details have been **10** ## **W.P.(C)No.2760 OF 2014** certified by the owner of the building vide Ext.R3(l) and the joint venture partner of the third respondent has issued Ext.R3(i) as to the actual construction effected by the third respondent. The learned Counsel submits that, by virtue of Exts.R3(e) to R3(g), R3(i)and R3(j), the third respondent has virtually satisfied all the conditions with regard to clause 16.1.1. of Ext.P1, whereas the requirement in respect of Clause 16.1.2 are sought to be satisfied with reference to Ex.R3(l) and Ext.P14. Particular reference is made to Exts.R3(e), R3(h) and R3(g) which reflect the construction effected in favour of Public Sector undertakings, to assert the credibility of the third respondent. The learned Counsel submits that the petitioners do not have a case that the petitioners have actually effected the construction and even going by the contents of Ext.P12 certificate, it is only regarding 'operation and maintenance'. The factual position has been conceded in the reply affidavit dated **10.03.2014** filed by the petitioners, wherein it is stated that 'operation and maintenance' is a level of construction and hence they should be deemed as qualified. The learned Counsel seeks to place reliance on the decision of the Apex Court in **2006(11) SCC 548** _**[B.S.N.Joshi**_ **11** ## **W.P.(C)No.2760 OF 2014** _**& Sons Ltd. Vs Nair Coal Services Ltd and others**_ **]** to contend that technical qualification in the matter of tender are to be interpreted in a rigid manner. The scope of judicial scrutiny and interference is stated as limited, in view of the law declared by the Supreme Court in **(2012) 8 SCC 216 [** _**Michigan Rubber (India) Limited vs State of Karnataka and others].**_ Similarly, reliance is sought to be placed on ( **2009)6 SCC 171** _**[Meerut Development Authority vs. Association of Management Studies**_ ] and ( **2000)2 SCC 617** _**[Air India Ltd. vs. Cochin International Airport Ltd.**_ ] to contend that the point to be looked into, is whether the concerned respondent has acted fairly and whether the proceedings are transparent. It is also pointed out that the sequence of events and proceedings are discernible from the ' **Note File'** produced by the Water Authority and that there is no instance of any malafides to call for interference. 14. On going through the tender conditions, as stated herein before, the stipulation under Clause 16.1.2 clearly insists that actual construction should have been effected by the intending parties within a span of five years and the primary **12** ## **W.P.(C)No.2760 OF 2014** question to be considered is whether the petitioners do satisfy the said requirement. No affidavit has been filed from the part of the petitioners to the effect that the petitioners have actually effected the construction of any 'Green building'; even though the petitioners have stated in the writ petition that they are qualified. The nature of the work undertaken by them has been reflected in the reply affidavit as well, when they contend that the 'operation and maintenance' is also a level of construction. The position becomes more clear, when it comes to Ext. P7 explanation submitted in response to Ext.P6, wherein it is stated as follows: _“ Your Letter requesting clarification says that “JV partner hadn't undertaken the full construction work of the building right from the beginning (i.e. the foundation and main structural work also)” which was not a part of original tender condition”_ 15. From the above, it is evident that the petitioners indirectly concede that they have not effected actual construction; but for the contention that the stipulation that the construction work of the building should be right from the beginning , i.e. including foundation and main structure work, **13** ## **W.P.(C)No.2760 OF 2014** was not part of the original tender condition. This Court finds it difficult to accept the said proposition, as clause 16.1.2. is quite categoric as to the necessity to effect the construction, which is reproduced in Ext.P3 'Instruction to the Bidders' as well. Ext.P12 certificate clearly shows that the certification given to the joint venuture partner of the petitioner, i.e. 2nd petitioner is only with regard to ' **operation and maintenance'** and not with reference to construction. 16. As rightly pointed out by learned Sr. Counsel for the respondent Water Authority, the extent of work completed by the joint venture partner of the petitioner, ie. 2[nd] petitioner, as discernible from Ext..P13, are the following: 1. Thermal Insulation 2. Acoustical Insulation 3. Electrical Insulation 4. Wall Claddings - 5.. Internal Partition Walls 6. False Ceiling 7. False flooring 8. Flooring 9. Paneling 10. Painting including specialty Paintings. **14** ## **W.P.(C)No.2760 OF 2014** This does no certify that the second petitioner has effected any construction and as such, it cannot be said that the petitioners are qualified. Hence rejection of the Technical Bid of the petitioners vide Ext.P8 does not call for any interference. 17. Coming to the question whether the respondent Water Authority was justified in proceeding with the bid of the third respondent or whether it was a case of 'Single Tender', this Court finds that the law has been declared by a Division Bench of this Court in **OP. 3332 of 2001,** referring to the public money involved and in turn the public interest, by virtue of which, it is not proper to accept Single Tender. But the question herein is, whether the said decision is applicable to the case in hand, in view of the factual aspects sought to be established from the part of the respondents; more so with reference to the original files and the relevant records. On going through the pleading and proceedings, the original files including the Note File, this Court finds that the particulars of construction of the building by the 4[th] respondent were sought to be substantiated, (pursuant to the clarification sought for as per letter dated 03.12.2013), as per the reply and the material furnished along with the said reply **15** ## **W.P.(C)No.2760 OF 2014** dated 05.12.2013. Copies of the relevant documents have been produced before this Court along with the additional counter affidavit dated 14.03.2014 as well. That apart, this Court has gone through the Original files produced before this Court. It is settled law that the scope of interference by this Court invoking the discretionary jurisdiction under Article 226 can be only _**with regard to the decision making process**_ and not with regard to the decision taken by the respondent authority. On probing the matter in the light of the binding precedents in this regard, this Court does not require any second thought to hold that the proceedings pursued and finalised by the Water Authority are quite transparent enough and that the same does not call for any interference. In the said circumstance, this Court finds that the writ petition is devoid of any merit and it is dismissed accordingly. ## **P.R.RAMACHANDRA MENON JUDGE** _sp/lk_