The Executive Engineer, Cochin Central Division, CPWD & The Superintending Engineer, Trivandrum Central Circle, CPWD v. K. Subramanian & Andeeswaran

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE TUESDAY, THE 20TH DAY OF NOVEMBER 2012/29TH KARTHIKA 1934 WA.No. 641 of 2012 () IN WPC/4118/2012 ------------------------------------------------ AGAINST THE ORDER/JUDGMENT IN .NO./ IN WPC.4118/2012 DATED APPELLANT(S): --------------- 1. THE EXECUTIVE ENGINEER COCHIN CENTRAL DIVISION CENTRAL PUBLIC WORKS DEPARTMENT (CPWD) KENDRIYA BHAVANM KAKKANADU, COCHIN 682031. 2. THE SUPERINTENDING ENGINEER, TRIVANDRUM CENTRAL CIRCLE CENTRAL PUBLIC WORKS DEPARTMENT (CPWD) TRIVANDRUM 695022 BY ADV. SRI.S.KRISHNAMOORTHY, SENIOR CGC RESPONDENT(S): - ------------------ 1. K. SUBRAMANIAN A CLASS GOVERNMENT CONTRACTOR REGAN NO 36/BSC/2008-09 ;MYTHRI MYLAKKAD P.O, KOLLAM 691571 2. ANDEESWARAN, PRESENT SUPERINTENDING ENGINEER, TRIVANDRUN CIRCLE CENTRAL PUBLIC WORKS DEPARTMENT (CPWD) THIRUVANANTHAPURAM 695022 R1 BY ADV. SRI.K.RAMAKUMAR (SR.) R1 BY ADV. SRI.P.B.KRISHNAN R1 BY ADV. SRI.M.P.RAMNATH R2 BY ADV. ADV.SRI.DINESH R SHENOY THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20-11-2012, ALONG WITH WA. 624/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **WA.No. 641 of 2012 () IN WPC/4118/2012** ## **APPENDIX** ANNEXURE A1: TRUE PHOTOCOPY OF THE TENDER NOTIFIED IN THE MATHRUBHOOMI DAILY DATED 13.12.2007. ANNEXURE A2: TRUE COPY OF THE TENDER NOTIFIED IN THE HINDU DAILY DATED 26.07.2008. /TRUE COPY/ P.A.TO JUDGE ## **MANJULA CHELLUR (CJ) &** ## **A.M.SHAFFIQUE, J.** **= = = = = = = = = = = = = = = = Writ Appeal Nos.641 of 2012 and 624 of 2012** **= = = = = = = = = = = = = = = = = = = = = Dated this the 20th day of November, 2012 JUDGMENT** ## **Manjula Chellur,CJ** Heard learned counsel for the appellants in both appeals and learned counsel appearing for the respondent-writ petitioner. Writ petition No.4118 of 2012 came to be filed by the respondent-writ petitioner against the appellants seeking following reliefs:- - A) Issue a writ in the nature of certiorari or such other writs or orders quashing Ext.P8 tender notice. - B) Declare that the addition of the words “similar work means “building work” only” in item1.2.1 at page-4 of Ext.P8 tender notice in respect of conditions for non-CPWD contractors, is illegal and arbitrary. - C)Issue a writ in the nature of certiorari or such other writs or orders quashing Ext.P9. - D)Issue a writ in the nature of mandamus or such other writs or orders directing the Respondents to act upon Ext.P6 bid of the Petitioner and invite him for negotiations on the rate offered and award the work covered by Ext.P5 tender notice to the Petitioner. **Writ Appeal Nos.641 of 2012 & 624 of 2012** **2** - E) Issue a writ declaring that the Petitioner is qualified for doing the works notified under Ext.P6 and P8 tenders and that the Respondents shall not prevent the Petitioner from bidding for the said work. - F) Award the cost of this writ petition. - G) Grant such other reliefs as this Hon'ble Court may deem fit in the facts and circumstances of the case. 2. It is not in dispute that by virtue of Exts.P3 and P5, on earlier occasion though the writ petitioner was somewhat a successful tenderer was not able to get the tender in his favour so far as the work of replacement of old mosaic floors with new jointless vitrified tiles at four floors of CMFRI Head Quarters building at Kochi, Kerala. 3. The challenge was with regard to Ext.P8 notification inviting tenders on the ground of mala fides exercised by 2[nd] and 3[rd] respondents, who is one and the same person by including one extra condition “similar work means “building work only”. According to the writ petitioner, he did not submit his tender on account of this additional condition of “building works” only which was not indicated in the earlier tenders for the same work at Exts.P3 and P5. Apparently, the last date for **Writ Appeal Nos.641 of 2012 & 624 of 2012** **3** submission of tenders as per Ext.P8 was 21.02.2012. The writ petition came to be filed on 17.02.2012. Surprisingly, there was no insistence for an interim direction to receive the tender of the writ petitioner also, as the last date was still ahead of the date of filing of the writ petition, i.e. 21.02.2012. As a matter of fact, the matter came to be disposed of on 24.02.2012, quashing Ext.P8 and continue the tender process in accordance with fresh notification to be issued, after rectifying the additional condition stated above. In the appeal filed on behalf of the department, learned Standing Counsel contends that on an earlier occasion though the tender could have been given to the writ petitioner, it could not have been given as it was less than the cost of estimation prepared by the department, therefore they did not offer the tender to the writ petitioner. It is also contended that there was no mala fide, whatsoever, committed either by the department or any of the officials in their individual capacity by including the words “similar work means “building work” only”. To substantiate this contention, learned counsel for the appellant Mr.Krishnamoorthy brings to our notice that though such **4** **Writ Appeal Nos.641 of 2012 & 624 of 2012** conditions were emphasized in respect of other works without any agitation or challenge, the very same writ petitioner had applied and he was even successful in getting some of the contracts. Therefore, according to learned counsel for the appellants, only for the sake of argument, such a contention is canvassed though the writ petitioner-Contractor was well aware that floor work includes building work as per the CPWD Manual. 4. So far as coming to another appeal filed by the Superintendent Engineer in his personal capacity aggrieved by the observations made at paragraph 3 of the judgment of the learned Single Judge, the main contention of learned counsel for the appellant, Mr.Dinesh R Shenoy, is that when such condition was included in several tenders, there was no justification on the part of the writ petitioner to allege mala fides against the appellants as being an experienced contractor he was also aware of the fact that laying flooring or mosaic floors is part of building work as per CPWD Manual. His main ground of attack was with regard to the observations of the learned Single Judge at paragraph 3 of the judgment. According to him, even before **Writ Appeal Nos.641 of 2012 & 624 of 2012** **5** he could be served with a notice, the observations as indicated at paragraph 3 of the judgment are not warranted. If only the appellant was given an opportunity to controvert the averments in the writ petition, the material indicating the bona fides of the tender process would have been placed before the Court. Therefore none of the observations made against the appellants herein should be sustained as he was not heard before making such observations. As against these submissions of the two appellants, learned Senior Counsel Mr.Jayakumar contends that in understanding of the writ petitioner, “similar work means “building work” only“ was rightly understood as construction of a building therefor as he did not have any special experience in said work, he did not submit his tender and he was all along under a bona fide belief that intentionally with mala fides to exclude his participation in the tender process, such a condition was imposed by the 2[nd] and 3[rd] respondents before the learned Single Judge, which is evident by the earlier litigation pending between the parties in W.P.(c).No.34416/2011. When learned counsel was asked why there was no insistence for interim **6** **Writ Appeal Nos.641 of 2012 & 624 of 2012** direction to receive the tender of the writ petitioner, the reply was that the writ petition came to be disposed of on merits, therefore no such prayer was sought. With these submissions at our command when we look in to the records, especially the judgment of the learned Single Judge, paragraph 3 refers to the allegations made against the Superintendent Engineer in his personal capacity on account of pendency of another litigation where the very same writ petitioner has sought for a direction for payment of amounts due from CPWD. 5. According to the writ petitioner, on account of pendency of this writ petition, in order to make him disable to participate, such an additional condition came to be included in the 3[rd] tender notification, Ext.P8 inviting tenders from those persons having experience in similar work which means “building work only”. It is not in dispute that 1[st] tender, Ext.P3 could have been allotted to this writ petitioner when the lowest bidder backed out from his offer, but the explanation, as already stated, is the quotation or the tender offer made by the writ petitioner was much higher than the estimated cost of the work at the **7** **Writ Appeal Nos.641 of 2012 & 624 of 2012** department. If really the appellants intended to exclude participation of the writ petitioner in the 2[nd] tender notification itself, the additional condition, as indicated in the 3[rd] notification Ext.P8, could have been included. It is also noticed in several other tenders which were successfully offered to the writ petitioner such words “similar work means “building works” only“ are included Therefore it is not a solitary incident where such a condition is included. This only indicates that the appellants' department is in the habit of making such conditions in several tender notifications. 6. Then the question is whether there was any mala fide intention on the part of the Superintendent Engineer to exclude the writ petitioner from participating in the tender process. As a matter of fact all the allegations made by the writ petitioner in the writ petition so far as mala fide intention of the 2[nd] and 3[rd] respondents are controverted in detail in the counter and additional counter affidavit filed by the department at paragraphs 19 and 20. As a matter of fact, at the very beginning of the counter affidavit, the person who has sworn to **8** **Writ Appeal Nos.641 of 2012 & 624 of 2012** the affidavit says, it is also filed on behalf of the 2[nd] and 3[rd] respondents on their instructions and authorisation. Reading of paragraphs 19 and 20 of the counter affidavit also indicate that the person who sworn to the affidavit was expressing the opinion of the 2[nd] and 3[rd] respondents as per the authorisation. In that view of the matter, there was no justification on the part of the learned Single Judge to say that the allegation of malafides has remained uncontroverted as observed at paragraph 3. As already stated above, the writ petitioner, being an experienced contractor who has done several works for the very same department, must be well aware what exactly the Manual says with regard to building works and what all works could be covered under the definition of “building work”. That apart, if he had any doubt or suspicion, he could have asked for interim relief at the very initial stage or he could have had a clarification from the department itself whether floor work experience is also to be considered or not before 21.02.2012 itself as the writ petition was filed on 17.02.2012. In the above circumstances, one cannot definitely allege mala fide intention **9** **Writ Appeal Nos.641 of 2012 & 624 of 2012** against the department or any of the officials in their individual capacity. For not being alert in seeking clarification or a direction as stated above, the writ petitioner has to blame himself. In the absence of any mala fides against the department or the officials, one cannot challenge the tender process and the terms of the tender. It is well settled by several judgments of the Apex Court including the decisions in **Tata Cellular vs. Union of India** [(1994) 6 SCC 651] and **B.S.N Joshi & Sons Ltd. vs. Nair** [(2006) 11 SCC 548]. In view of the above discussion and reasoning, we are of the opinion, the judgment of the learned Single Judge deserves to be set aside. Accordingly, appeals are allowed. ## **MANJULA CHELLUR, CHIEF JUSTICE** ## **A.M.SHAFFIQUE, JUDGE.** sj 21/11