Saji Mathew v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943** **WP(C) NO. 2475 OF 2022** ## **PETITIONER:** **SAJI MATHEW, AGED 49 YEARS, S/O.MATHAI T M, PWD CONTRACTOR, THENGUMTHOTTATHIL, KARAKKAMALA P.O, MANANTHAVADY, WAYANAD DISTRICT 670 645** **BY ADVS. ABRAHAM MATHEW (VETTOOR) ANIL ABEY JOSE** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF INDUSTRIES AND COMMERCE, SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **2 KERALA ELECTRICAL AND ALLIED ENGINEERING CO.LTD. (KEL), REPRESENTED BY ITS MANAGING DIRECTOR, 7TH FLOOR, KERALA STATE HOUSING BOARD BUILDING, PANAMPILLY NAGAR, KOCHI 682 036** - **3 THE DEPUTY GENERAL MANAGER (PROJECTS), KERALA ELECTRICAL AND ALLIED ENGINEERING CO.LTD (KEL) MAMALA, KOCHI 682 305.** - **4 M/S. BANKERS CONSTRUCTION, GXHW+FJH, BANKERS VILLA, VAZHOTTUKONAM, THIRUVANANTHAPURAM, KERALA 695 013** **BY ADVS. R2-3 BY SRI.M.K.THANKAPPAN, SC, KEL R4 BY SRI.RAVI SANKAR P.K. R4 BY HAMEED KUNJU.A (K/000012/2022) SRI.APPU P.S., GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C)No.2475/2022** **2** ## **JUDGMENT** **Dated this the 8[th] day of March, 2022** The petitioner, who is an A Class PWD Contractor having PWD Licence which is valid up to 31.03.2023, is before this Court seeking to quash Ext.P4 and to direct respondents 2 and 3 to consider the financial bid submitted by the petitioner along with the financial bid of the other bidders, in the interest of justice. 2. The petitioner states that he holds Ext.P1 PWD Contractors Licence. On behalf of the 2[nd] respondent-Kerala Electrical and Allied Engineering Co.Ltd. (KEL), Ext.P2 e-tender was floated for the work of “Valiyamada Water Front Project at Kumarakom”. The **WP(C)No.2475/2022** **3** petitioner submitted his tender. In Ext.P2 e-tender portal, it was stated that the tender floated thereunder is open tender. On 28.12.2021, Ext.P3 was issued. In Ext.P3, it was stated that the contractors should have registration with M/s.KEL. The contractors registered with KEL have to upload the registration certificate along with the tender documents. The petitioner states that he has A Class Registration with PWD Department but he is not registered with the KEL. According to the petitioner, the 2[nd] respondent is not competent to prescribe such a condition. Such a condition is intended to reduce the participation and consequently the competition. Such condition is intended to favour certain blue eyed boys of the 2[nd] respondent-KEL. 3. The petitioner pointed out that Clause 2 of Ext.P3 lays down eligibility of the tenderers. Clause 2.1 provides that tenderers shall not be under a **WP(C)No.2475/2022** **4** declaration of ineligibility for corrupt and fraudulent practices issued by the Government of Kerala. Ext.P2 lays down the conditions generally prescribed by the Government of Kerala in the matter of tenders/e-tenders. The 2[nd] respondent has illegally and arbitrarily introduced a condition of registration with KEL, which is not generally provided by the Government of Kerala. 4. The petitioner submitted that as per Clauses 1.0 and 1.1 of Ext.P3, the bidders should have executed similar type of work for value not less than 60% of the quantity of the BOQ in single work order within last three financial years. The details of work executed during last five financial years shall be furnished with the value of work and completion period. The petitioner satisfies the condition prescribed in Clause 1.0. Nevertheless, he has been ousted from consideration, on the ground of nonregistration with KEL. **WP(C)No.2475/2022** **5** 5. The learned counsel for the petitioner pointed out that there were only four bidders. The bid of the petitioner alone has been rejected. The petitioner's bid is the lowest. The 4[th] respondent, who is subsequently declared as L1, has opted ₹4,01,60,173.59. The amount quoted by the petitioner for the work under Exts.P2 and P3 was ₹3,86,33,219.10. The petitioner's bid is lower by ₹15,26,954.49. When there is a huge difference between the amounts in bid quoted and the bid submitted by the petitioner is more advantageous to the 2[nd] respondent, the respondents ought to have accepted the bid of the petitioner. 6. The learned counsel for the petitioner further urged that if registration with KEL is mandatory, then the other three bidders, whose bids were considered, were also ineligible. The petitioner produced Exts.P7 to P9 Certificates of Registration submitted by other bidders. It **WP(C)No.2475/2022** **6** is evident from Exts.P7 to P9 that as on the date of bid, registration of those bidders had expired. If that be so, the petitioner and the three other bidders stand on the same footing. The respondents ought to have considered the petitioner's bid also or in the alternative should have rejected the bids submitted by others for not holding valid registration with KEL as on the date of submission, urged the learned counsel for the petitioner. 7. The learned counsel for the petitioner pointed out that as per Clause 1 of Ext.P9 terms and conditions of registration, the registration issued by the KEL will be valid for one year from the date of issue unless otherwise renewed. Therefore, admittedly Exts.P7 to P9 were invalid at the time of bidding. The respondents, therefore, are compellable to consider the bid submitted by the petitioner in the interest of justice as also in public interest, urged the learned counsel for the petitioner. **WP(C)No.2475/2022** **7** 8. The 4[th] respondent, who is the lowest bidder, entered appearance and contested the writ petition. The 4[th] respondent pointed out that though the petitioner is contending that the condition as to registration with KEL should not be made mandatory, the petitioner has not opted to challenge the said Clause in Ext.P3. As long as the petitioner has not legally challenged the said provision in Ext.P3, any argument based thereon cannot be entertained. 9. The learned counsel for the 4[th] respondent submitted that the registration with the KEL is done on an year to year basis. Before the period of expiry of registration of the 4[th] respondent with the KEL, the 4[th] respondent had submitted application for renewal. The 4[th] respondent paid ₹8,260/- towards registration charges and subsequently made good the deficiencies. Therefore, it cannot be said that the 4[th] respondent is **WP(C)No.2475/2022** **8** ineligible to participate in the bid. 10. The counsel for the 4[th] respondent urged that in view of the judgment of the Hon'ble Apex Court in _**Silppi Constructions Contractors v. Union of India and another** [2020 (16) SCC 489]_ , this Court should be reluctant to invoke Article 226 and venture adjudication of a dispute falling purely within the realm of contract. The petitioner has not made out a case for interference by this Court under Article 226, contended the learned counsel for the 4[th] respondent. 11. Respondents 2 and 3 also contested the writ petition filing a Statement. The learned Standing Counsel for respondents 2 and 3 pointed out that the 2[nd] respondent-KEL is a Government Company and is bound to follow Government Orders. Clause 1 of e-tender provides that the registration with KEL is mandatory for any bidder to participate in the tender **WP(C)No.2475/2022** **9** process. The petitioner did not produce certificate of registration with KEL. Ext.P2 mandated production of empanelment certificate of KEL, registration certificates, experience certificates and other annexures. The petitioner did not produce or upload any of those documents. 12. The learned Standing Counsel controverted the allegation that the registration with KEL was made mandatory to favour a few. The learned Standing Counsel pointed out that on 28.12.2021, the KEL has empanelled/registered as many as 56 persons. The learned Standing Counsel further pointed out that the bids were not handled by any single Officer. The bid documents were considered by a competent Committee constituted by respondents 2 and 3. There is no discrimination whatsoever in the matter of rejection of the bid of the petitioner. **WP(C)No.2475/2022** **10** 13. The petitioner's bid was rejected primarily for the reason that the petitioner had no registration with KEL, contended the learned counsel for respondents 2 and 3. The petitioner did not apply for registration with KEL. In the circumstances, the writ petition is liable to be dismissed. The learned Standing Counsel also relied on the judgment of the Apex Court in _**Silppi Constructions Contractors**_ (Supra), to contend that the writ petitioner cannot seek relief under Article 226, in the circumstances of the case. 14. I have heard the learned counsel for the petitioner, the learned Government Pleader representing the 1[st] respondent, the learned Standing Counsel representing respondents 2 and 3 and the learned counsel for the 4[th] respondent. 15. The question arising in this case is whether a bidder not possessing a registration with the KEL, can be **WP(C)No.2475/2022** **11** permitted to bid in a tender proceedings floated by the KEL. Ext.P2 e-tender has been issued through a e-tendering system/portal of the Government of Kerala. It does not mean that all the e-tenders floated through the e-tendering system of Government of Kerala should necessarily follow the Rules framed by the Government of Kerala in the matter of e-tendering. In this case, Ext.P3 notice inviting tender dated 28.12.2021 made it amply clear that only those Civil Contractors who have registration with M/s. KEL will be eligible for participating in the tender. It was also made clear in Ext.P3 that the tenderers should upload their registration certificate along with the tender documents. 16. A Company especially a Public Sector Undertaking is at liberty to insist that only those contractors who have registration with the company will be permitted to bid. The petitioner's bid was rejected on **WP(C)No.2475/2022** **12** the ground that the petitioner does not have a registration with the KEL. This Court do not find any illegality or irregularity in the rejection of the tender submitted by the petitioner. 17. The contention of the petitioner is that if that be the case, other three bidders whose bids were considered, did not possess a valid Registration Certificate with the KEL. Exts.P7 to P9 Certificates of Registration issued by the KEL to those three bidders stood expired even prior to the submission of bids by those bidders. However, it is to be noted that the 4[th] respondent, who turned out to be L1 bidder and was awarded the work, had submitted application for renewal of registration before the submission of the bid in pursuance to Ext.P3. 18. Since the petitioner had held a valid registration and since his application for renewal of the **WP(C)No.2475/2022** **13** registration was pending consideration with the 2[nd] respondent-KEL, respondents 2 and 3 decided to consider the bid of the 4[th] respondent. It has come out that subsequently, on 28.12.2021, the petitioner was granted renewal of licence. Since the licence renewal application was pending before the 2[nd] respondent, the 2[nd] respondent decided to consider the bid of the 4[th] respondent. In the circumstances, this Court do not find any illegality in considering the bid of the petitioner. 19. The allegation of the petitioner is that the said condition has been imposed solely with a view to favour a few. There is no material on record to come to a conclusion that the 2[nd] respondent or the 3[rd] respondent is intended to favour any candidate including the 4[th] respondent. In the absence of any material, this Court do not find any reason to hold that the condition as to registration with the KEL, is arbitrary. **WP(C)No.2475/2022** **14** In view of the facts and circumstances as stated above, this Court find no merit in the writ petition. The writ petition stands dismissed. Sd/- **N. NAGARESH JUDGE** SR **WP(C)No.2475/2022** **15** ## **APPENDIX OF WP(C) 2475/2022** ## **PETITIONER'S EXHIBITS:** |**Exhibit P1**|**A TRUE COPY OF THE LICENSE NO**| |---|---| ||**36A2009-10 SO ISSUED BY THE PWD**| ||**ROADS AND BRIDGES, NORTH CIRCLE,**| ||**KOZHIKODE**| |**Exhibit P2**|**A TRUE COPY OF THE TENDER DETAILS**| ||**DOWNLOADED FROM THE E-TENDERING**| ||**SYSTEM, GOVERNMENT OF KERALA, DATED**| ||**01-01-2022**| |**Exhibit P3**|**A TRUE COPY OF THE TENDER FORM**| ||**DOWNLOADED FROM THE WEB SITE OF THE**| ||**RESPONDENTS DATED 28-12-2021**| |**Exhibit P4**|**A TRUE COPY OF THE PRINT OUT OF THE**| ||**COMMITTEE DETAILS WITH REFERENCE TO**| ||**TENDER ID 2021 KEL 463598 1 WHICH**| ||**DATED 17-01-2022**| |**Exhibit P5**|**A TRUE COPY OF THE BOQ SUMMARY**| ||**DETAILS OBTAINED FROM THE WEBSITE**| ||**OF THE RESPONDENTS**| |**Exhibit P6**|**A TRUE COPY OF THE BOQ (BILL OF**| ||**QUANTITY) AS PER THE TENDER**| ||**SUBMITTED BY THE PETITIONER**| |**Exhibit P7**|**A TRUE COPY OF THE REGISTRATION**| ||**CERTIFICATE PRODUCED BY THE 4TH**| ||**RESPONDENT,M/S.BANKERS CONSTRUCTION**| ||**DATED 13-03-2020**| |**Exhibit P8**|**A TRUE COPY OF THE REGISTRATION**| ||**CERTIFICATE**<br>**PRODUCED**<br>**BY**<br>**L2**| ||**CONTRACTOR,**<br>**M/S.CUBIX**| ||**INFRASTRUCTURES DATED 16-01-2019**| |**Exhibit P9**|**A TRUE COPY OF THE REGISTRATION**| ||**CERTIFICATE PRODUCED BY THE L3**| ||**CONTRACTOR**<br>**M/S.**<br>**AAYKAY**| ||**CONSTRUCTIONS DATED 13-03-2020**| **WP(C)No.2475/2022** **16** ## **RESPONDENTS' EXHIBITS:** |**ANNEXURE R3(a)**|**TRUE COPY OF THE ORDER NO.P2-**| |---|---| ||**6806/18 DATED 14.08.2019.**| |**ANNEXURE R3(b)**|**TRUE COPY OF THE GOVERNMENT ORDER**| ||**NO.161/2019/FIN DATED 25.11.2019.**| |**ANNEXURE R3(c)**|**TRUE COPY OF THE CIRCULAR**| ||**RESOLUTION DATED 27.01.2022**| |**ANNEXURE R3(d)**|**TRUE COPY OF THE CERTIFICATES OF**| ||**REGISTRATION ISSUED TO M/S. CUBIX**| ||**INFRASTRUCTURES**<br>**'A'**<br>**CLASS**| ||**CONTRACTOR VIDE CERTIFICATE NO.E-**| ||**06/14/R2/2021-22 DATED 28.12.2021**| |**ANNEXURE R3(e)**|**TRUE COPY OF THE CERTIFICATE OF**| ||**REGISTRATION SERVED TO M/S.AAYKAY**| ||**CONSTRUCTION**<br>**(A**<br>**CATEGORY**| ||**CONTRACTOR) VIDE REGISTRATION NO.E-**| ||**06/14/R2/2021-22 DATED 28.12.2021.**| |**ANNEXURE R3(f)**|**TRUE COPY OF THE CERTIFICATE OF**| ||**REGISTRATION SERVED TO M/S.BANKERS**| ||**CONSTRUCTION**<br>**(B**<br>**CATEGORY**| ||**CONTRACTOR) VIDE REGISTRATION NO.E-**| ||**06/15/R2/2021-22 DATED 28.12.2021.**| |**Exhibit R4(A)**|**TRUE COPY OF THE CERTIFICATE OF**| ||**REGISTRATION**<br>**DATED**<br>**16/01/2019**| ||**ISSUED BY THE GENERAL MANAGER OF**| ||**THE 2ND RESPONDENT**| |**Exhibit R4(B)**|**TRUE COPY OF THE CERTIFICATE OF**| ||**REGISTRATION**<br>**DATED**<br>**13/03/2020**| ||**ISSUED BY THE GENERAL MANAGER OF**| ||**THE 2ND RESPONDENT**| |**Exhibit R4(C)**|**TRUE COPY OF THE RELEVANT PAGES OF**| ||**THE BANK STATEMENT OF THE 4TH**| ||**RESPONDENT**| |**Exhibit R4(D)**|**TRUE COPY OF THE RELEVANT PAGES OF**| ||**THE BANK STATEMENT OF THE MANAGING**| ||**PARTNER OF THE 4TH RESPONDENT**| |**Exhibit R4(E)**|**TRUE COPY OF THE CERTIFICATE OF**| ||**REGISTRATION**<br>**DATED**<br>**28/12/2021**| ||**ISSUED BY THE DEPUTY GENERAL**| **WP(C)No.2475/2022** **17** **MANAGER OF THE 2ND RESPONDENT TO THE 4TH RESPONDENT** **Exhibit R4(F) TRUE COPY OF THE WORK ORDER NO. KMPS/288 (464)/532/6068/2022 DATED 16/02/2022 ISSUED BY THE MANAGER, PROJECT OF THE 2ND RESPONDENT Exhibit R4(G) TRUE COPY OF THE LETTER NO. KMPS/288(464)/532/6266(A)/2022 DATED 23/02/2022 ISSUED BY THE 2ND RESPONDENT**