NAPC Limited v Kannur International Airport Limited and The Secretary, Department of Transport, Government of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **TUESDAY, THE 9TH DAY OF APRIL 2013/19TH CHAITHRA 1935** ## **WP(C).No. 10069 of 2013 (G)** **----------------------------** ## **PETITIONER :** **--------------------------** **NAPC LIMITED, REPRESENTING THE JOINT VENTURE, REP. BY ITS AUTHORIZED PERSON MR. M. SHIVAPRAKASH, KHIVRAJ COMPLEX, 480, ANNA SALAI, NANDANAM, CHENNAI-600 035.** **BY SRI.V.T.GOPALAN, SENIOR ADVOCATE ADVS.SRI.P.GOPALAKRISHNA MENON SRI.M.JITHESH MENON** **RESPONDENT(S):** **----------------------------** **1. THE KANNUR INTERNATIONAL AIRPORT LIMITED, HAVING ITS REGISTERED OFFICE, AT 'PARVATHY', T.C. 36/1, CHACKAI, N.H. BYPASS, THIRUVANANTHAPURAM-695 024, KERALA,INDIA, REPRESENTED BY ITS MANAGING DIRECTOR.** ## **2. THE SECRETARY,** **DEPARTMENT OF TRANSPORT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM KERALA PIN-695 001.** **R1 BY SRI.A.K.JAYASANKAR NAMBIAR, SENIOR ADVOCATE ADV.SRI.M.GOPIKRISHNAN NAMBIAR BY GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 10069 of 2013 (G) ------------------------------------------** ## **APPENDIX** |**PETITIONER(S)' EXHIBITS**|**PETITIONER(S)' EXHIBITS**| |---|---| |**-------------------------------------**|| |**EXT.P1**|**TRUE COPY OF THE REQUEST FOR QUALIFICATION (RFQ) FOR EPC I**| |**EXT.P2**|**TRUE COPY OF THE JOINT BUILDING AGREEMENT DATED 21-2-13**| |**EXT.P3**|**TRUE COPY OF THE APPLICATION AND DEMAND DRAFT SUBMITTED**| ||**WITH THE 1ST RESPONDENT AND ACKNOWLDGMENT OBTAINED**| |**EXT.P4**|**TRUE COPY OF THE EXTRACTS OF NET WORTH OF FINANCIAL YEAR**| ||**2012 OF THE PETITITIONER COMPANY NAPC, EUROVLA VERKEHRSBAU**| ||**UNION GMBH**| |**EXT.P5**|**TRUE COPY OF THE EXTRACT S OF THE CONSOLIDATED FINANCIAL**| ||**STATEMENT FROM ANNUAL REPORT OF VINCI GROUP FOR THE YEAR**| ||**2012 OF VINCI GROUP.**| |**EXT.P6**|**TRUE COPY OF THE PETITIONER'S REPRESENTATION TO THE 1ST**| ||**RESPONDENT.**| |**EXT.P7**|**TRUE COPY OF BUSINESS PROFILE OF YETERYEARS.**| |**EXT.P8**|**TRUE COPY OF THE CORRIGENDUM.**| |**RESPONDENT(S)' EXHIBITS:**<br>**NIL**|| ||**/TRUE COPY/**| ## **P.S.TO.JUDGE** **sts** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. ## **W.P.(C)No.10069 OF 2013** ......................................................................... **Dated this the 9[th] April, 2013** ## **J U D G M E N T** The petitioner, who is a joint venture/Consortium, has approached this Court seeking for issuance of a direction to quash Clause 2.2 (f)(B) of Ext.P1 RFQ (Request For Qualification). The grievance is in respect of the above Clause which requires that the Lead member/partner-in-charge shall also fulfill 40% of the minimum qualifying criteria in respect of Annual Turnover, Profitability, Liquidity and Net Worth laid down in clause 2.2, apart from such other requirements to be possessed by the Lead Member. The petitioner also seeks for issuance of a writ of mandamus directing the first respondent to furnish the RFP, if the petitioner satisfies all other conditions as specified. 2. The first respondent herein ( Kannur International Airport Limited) is a Public Limited Company floated by the State Government and who has issued Ext. P1 in connection with the setting up of the said project (Green Field Airport). Subsequent to issuance of RFQ, the petitioner herein formed a Consortium **2** ## **W.P.(C)No.10069 OF 2013** and sought to participate in the Tender. According to the petitioner, the Lead Member of the Petitioner Venture i.e _EUROVIA Verkehrsbau Union GmbH_ satisfies more than 100% of the minimum financial criteria of 175 Crores stipulated under **Clause 2.2** . However, in the case of the other Member ( EUROVIA Beton GmbH) of the Consortium, it is having a net worth of nearly Rs.55 Crores, which is equivalent to 21% less than the minimum criteria prescribed by the 1[st] respondent. According to the petitioner, the said clause is actually an arbitrary and unconscionable one; more so in view of the law declared by the Apex Court. As a matter of fact, a similar mistake in respect of qualifying work experience was considered and Ext.P8 Corrigendum Notice was issued, whereby the respondent has made it clear that the Partner-in-charge/Lead Member and Partners/Members together shall cumulatively fulfill 100% qualifying work experience . Grievance of the petitioner is that, a similar approach/stipulation has not been made in respect of financial aspects, which forms the grievance sought to be redressed at the hands of this Court. **3** ## **W.P.(C)No.10069 OF 2013** 3. During the course of hearing, Shri V.T. Gopalan, the learned Sr. Counsel for the petitioner submits that the course and proceedings pursued by the respondents are per se wrong and illegal in all respects, as it is not open for the respondents to prescribe any conditions, which is rather arbitrary and which stands contrary to law already declared by the Apex Court on the point. The learned Counsel seeks to place reliance on the decision in _**LIC of India and another vs. Consumer Education & Research Centre and others**_ [( **1995) 5 SCC 482** ] (Paragraphs Nos.21 and 32) and asserts that if the Clause is arbitrary and unconscionable, the same is liable to be intercepted by this Court invoking the power under Article 226 of the Constitution of India. It is further pointed out that, the way in which qualification has to be appreciated and analysed in respect of a 'joint venture undertaking', has already been explained by the Apex Court in detail as per the decision in _**New Horizons and another vs. Union of India and others**_ [ **(1995)1 SCC 478** ](Paragraphs No.24 to 26). Reference is also made to the decisions in _**Reliance Energy Ltd. and another**_ **4** ## **W.P.(C)No.10069 OF 2013** _**vs. Maharashtra State Road Development Corporation Ltd. and others [(2007) 8 SCC 1] (Paragraph 36)**_ and in _**Ganpati RV Talleres Alegria Track Private Ltd. vs. Union of India and another**_ **[(2009) 1 SCC 589** ). The learned Counsel submits that the Lead Member of the petitioner itself does satisfy the requirement of the qualification and as such, there cannot be any bar to prevent the petitioner, when a Joint Consortium is formed with such a leading member from participating in the Bid. It is also brought to the notice of this Court that the grievance has been projected by way of Ext.P6 dated 30.03.2013 before the first respondent, which is still to be acted upon. 4. Mr.A.K. Jayasankar Nambiar, the learned Sr. Counsel, supported by Mr. Gopinadha Menon, submits that the qualification has been stipulated on the basis of the requirements, to ensure that the best parties in the lot are given entry to the arena, so as to have better results. It is stated that the Tender form is still to be issued and the matter is only at the formative stage. It is also pointed out that the respondents have always got an open mind and that since the issue is to be **5** ## **W.P.(C)No.10069 OF 2013** dealt with in a transparent manner, the respondents are ready and willing to consider Ext.P6 and pass appropriate orders, after affording an opportunity of hearing to the petitioner, which will be done within the shortest possible time; submits the learned Counsel. The learned Sr. Counsel further submits that, considering the applications preferred by the parties concerned, the list of qualified participants is likely to be released within a few days and that the claim of the petitioner will also be considered and a proper order will be passed, based on which, if the petitioner turns to be qualified, Tender Form will be issued to the petitioner as well. 5. After hearing both the sides, this Court finds that the matter has to be dealt with, at the first instance, by the respondents by passing appropriate orders on Ext.P6. As such, this Court does not require to adjudicate the issue on merits. There will be a direction to the first respondent to consider Ext.P6 and pass appropriate orders, after affording an opportunity of hearing to the petitioner, at the earliest at any rate, within one month from the date of receipt of a copy of the **6** ## **W.P.(C)No.10069 OF 2013** judgment. It is made clear that, if the petitioner is found as qualified, necessary Tender forms shall be issued to the petitioner, so as to enable the petitioner to participate in the Bid, in accordance with law. All contentions are left open. The writ petition is disposed of. ## **P.R.RAMACHANDRA MENON JUDGE** lk