W.A.Nos.811 and 813 of 2023

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** # **`THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` MONDAY, THE 19[TH] DAY OF JUNE 2023 / 29TH JYAISHTA, 1945 ``` ``` WA NO. 811 OF 2023 ``` ``` AGAINST THE JUDGMENT DATED 11.04.2023 IN WP(C).NO. 10993 of 2023 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/S:`** ``` LAXMI CIVIL ENGINEERING SERVICES PVT. LTD 1031/K2, E WARD, 3RD FLOOR, STERLING TOWER, GAVAT MANDAL, SHAHUPURI, KOLHAPUR, MAHARASHTRA, REPRESENTED BY ITS EXECUTIVE DIRECTOR, PIN - 416001 ``` ``` BY ADVS. NISHA GEORGE GEORGE POONTHOTTAM (SR.) N.ANAND ``` ## **`RESPONDENT/S:`** - **`1 KERALA WATER AUTHORITY JALA BHAVAN, VELLAYAMBALAM.P.O.,`** ``` THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR, PIN - 695033 ``` ``` 2THE MANAGING DIRECTOR KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM.P.O., THIRUVANANTHAPURAM, PIN - 695033 ``` ``` 3THE CHIEF ENGINEER KERALA WATER AUTHORITY, P H CIRCLE, MALAPARAMBA.P.O, KOZHIKODE, DISTRICT, PIN - 673009 ``` - **`4 THE SUPERINTENDING ENGINEER KERALA WATER AUTHORITY, P.H. CIRCLE, MALAPARAMBA.P.O., KOZHIKODE, PIN - 673009`** - **`5 M/S. MIDLAND ENGINEERING AND CONTRACTING COMPANY VARIKKODAN BUILDING, VALIYAVARAMBU ROAD, DOWN`** -:2:- W.A.Nos.811 and 813 of 2023 ``` HILL.(PO), MALAPPURAM- 676519, REPRESENTED BY ITS MANAGING PARTNER, PIN - 676519 ``` ``` 6JOSEPH JOHN MONIPILLIL HOUSE, AVOLI.P.O., ANICADU, MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN - 686661 ``` ``` BY ADVS. P.M.JOHNY P.M.JOHNY ABRAHAM JOSEPH MARKOS No Advocate No Advocate No Advocate No Advocate ISAAC THOMAS(K/571/2014) P.G.CHANDAPILLAI ABRAHAM(MAH/002141/2016) V.ABRAHAM MARKOS(K/354/1975) JOHN VITHAYATHIL(K/001877/2021) AIBEL MATHEW SIBY(K/1376/2020) JOSEPH KODIANTHARA (SR.)(J-381) ALEXANDER JOSEPH MARKOS(K/001270/2018) ``` ``` THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19.06.2023, ALONG WITH WA.813 OF 2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -:3:- W.A.Nos.811 and 813 of 2023 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` **==> picture [8 x 8] intentionally omitted <==** ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` MONDAY, THE 19[TH] DAY OF JUNE 2023 / 29TH JYAISHTA, 1945 ``` ``` WA NO.813OF 2023 ``` ``` AGAINST THE JUDGMENT DATED 11.04.2023 IN WP(C).NO.10996 OF 2023 OF HIGH COURT OF KERALA ``` ``` APPELLANT/S: ``` ``` REENA ENGINEERING AND CONTRACTORS PVT. LTD. MT-89-S, HIGHWAY ARCADE, THANA, KANNUR REPRESENTED BY ITS MANAGING DIRECTOR, PIN - 670002 ``` ``` BY ADVS. NISHA GEORGE GEORGE POONTHOTTAM (SR.) N.ANAND ``` ## **`RESPONDENT/S:`** ``` 1KERALA WATER AUTHORITY JALA BHAVAN, VELLAYAMBALAM.P.O., THIRUVANANTHAPURAM: REPRESENTED BY ITS MANAGING DIRECTOR, PIN - 695033 ``` ``` 2THE MANAGING DIRECTOR KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM.P.O., THIRUVANANTHAPURAM, PIN - 695033 ``` ``` 3THE CHIEF ENGINEER KERALA WATER AUTHORITY, P H CIRCLE, MALAPARAMBA.P.O, KOZHIKODE, DISTRICT, PIN - 673009 ``` ``` 4THE SUPERINTENDING ENGINEER KERALA WATER AUTHORITY, P.H. CIRCLE, MALAPARAMBA.P.O., KOZHIKODE, PIN - 673009 ``` -:4:- ## W.A.Nos.811 and 813 of 2023 ``` 5M/S. MIDLAND ENGINEERING AND CONTRACTING COMPANY VARIKKODAN BUILDING, VALIYAVARAMBU ROAD, DOWN HILL.(PO), MALAPPURAM- 676519, REPRESENTED BY ITS MANAGING PARTNER, PIN - 676519 ``` ``` 6JOSEPH JOHN MONIPILLIL HOUSE, AVOLI.P.O., ANICADU, MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN - 686661 ``` ``` BY ADVS. P.M.JOHNY P.M.JOHNY Martin Jose P Nisha George ABRAHAM JOSEPH MARKOS ISAAC THOMAS(K/571/2014) ALEXANDER JOSEPH MARKOS(K/001270/2018) V.ABRAHAM MARKOS(K/354/1975) P.G.CHANDAPILLAI ABRAHAM(MAH/002141/2016) JOHN VITHAYATHIL(K/001877/2021) AIBEL MATHEW SIBY(K/1376/2020) JOSEPH KODIANTHARA (SR.)(J-381) ``` ``` THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19.06.2023, ALONG WITH WA.811 OF 2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -:5:- W.A.Nos.811 and 813 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** Since common issues are involved, these writ appeals were heard together and are being disposed of by this common judgment. 2. W.A.No.811 of 2023:- The appellant, namely, Laxmi Civil Engineering Services Pvt. Ltd., filed W.P.(C) No.10993 of 2023 before this Court, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P16 pre-qualification approval of tenders dated 25.03.2023 issued by the 4[th] respondent Superintending Engineer, Kerala Water Authority, PH Circle, Kozhikode to the extent it disqualified the petitioner in Ext.P1 e-tender notice dated 13.09.2022 regarding Jal Jeevan Mission (JJM) Phase II : Water Supply Scheme (WSS) to Chathamangalam and adjoining panchayats in Kozhikode District. The further reliefs sought for are a declaration that the petitioner is prequalified to get the work tendered in Ext.P1 e-tender notice dated 13.09.2022 and Ext.P2 notice inviting tender (Volume I); a writ of certiorari quashing Ext.P16 to the extent it prequalified the 5[th] and 6[th] respondents, namely, Midland Engineering and Contracting Company and one -:6:- ## W.A.Nos.811 and 813 of 2023 Joseph John and the resultant award of tender in favour of the said respondents; and a writ of mandamus commanding the respondents to accept the tender based on the rate quoted by the petitioner pursuant to Exts.P1 and P2 tender notifications. 3. W.A.No.813 of 2023:- The appellant, namely, Reena Engineering and Contractors Pvt. Ltd., filed W.P.(C)No.10996 of 2023 seeking a writ of certiorari to quash Ext.P18 pre-qualification approval of tenders dated 25.03.2023 issued by the 4[th] respondent Superintending Engineer, Kerala Water Authority, PH Circle, Kozhikode to the extent it disqualified the petitioner in Ext.P1 e- tender notice dated 13.09.2022 regarding JJM Phase II : WSS to Chathamangalam and adjoining panchayats in Kozhikode District. The further reliefs sought for are a declaration that the petitioner is prequalified to get the work tendered in Ext.P1 e-tender notice dated 13.09.2022 and Ext.P2 notice inviting tender (Volume I); a writ of certiorari quashing Ext.P18 to the extent it prequalified the 5[th] and 6[th] respondents, namely, Midland Engineering and Contracting Company and one Joseph John and the resultant award of tender in favour of the said respondents; and a writ of mandamus commanding the respondents to accept the tender based on the rate quoted by the petitioner pursuant to Exts.P1 -:7:- ## W.A.Nos.811 and 813 of 2023 and P2 tender notifications. The appellant submitted bid pursuant to Ext.P1 e-tender notification, in a joint venture with Laxmi Civil Engineering Services Pvt. Ltd., the appellant in W.A.No.811 of 2023. 4. By the judgment dated 11.04.2023, the learned Single Judge dismissed W.P.(C)Nos.10993 & 10996 of 2023 holding that the Special Committee for pre-qualification approval has examined the entire pros and cons of the matter and arrived at its own conclusions, taking into account the contentions advanced and the documents produced by the respective bidders. Even though the writ petitioners have raised contentions with respect to the ineligibility of respondents 5 and 6 to prequalify, it cannot be said that the evaluation done by the Special Committee is in any way illegal, arbitrary, perverse or out of any extraneous consideration or vitiated by mala fides. The Special Committee has evaluated the past experience of the writ petitioners and has arrived at its own findings, taking into account the documents produced and therefore, it cannot be said that the said evaluation is in any way bad, illegal or arbitrary. The learned Single Judge noticed that a full-fledged hearing and participation was given to all the bidders by the Special Committee consisting of technically qualified -:8:- ## W.A.Nos.811 and 813 of 2023 persons and the writ petitioners have not established any case of illegality, arbitrariness or any other legal infirmities to arrive at a different conclusion than the one arrived at by the Special Committee, in order to interfere with the consequential order passed by the tender authority disqualifying the writ petitioners. After referring to the law laid down by the Apex Court in **Ganpati RV-Talleres Alegria Track (P) Ltd. v. Union of India [(2009)** **1 SCC 589]** , in respect of the determination to be done in case of a joint venture company when the eligibility certificate is issued in the name of the joint venture partners, and also the law laid down by the Apex Court in **N.G. Projects Ltd. v. Vinod Kumar Jain [(2022) 6 SCC 127]** in the context of judicial review in cases involving tenders, the learned Single Judge held that the writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The High Court does not have the expertise to examine the terms and conditions of the present-day economic activities of the State and this limitation should be kept in mind. The court should be even more reluctant in interfering with contracts involving technical issues as there is a requirement for the necessary expertise to adjudicate upon such issues. The approach of the -:9:- W.A.Nos.811 and 813 of 2023 court should be not to find fault with magnifying glasses in its hands, rather the court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the court finds that there is total arbitrariness or that the tender has been granted in a mala fide manner, still the court should refrain from interfering in the grant of tender and relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against the public interest. Therefore, the State and its citizen suffer twice, firstly by paying escalation costs and secondly by being deprived of the infrastructure for which the present-day Governments are expected to work. While dismissing the writ petitions in the absence of any reason to interfere with the orders passed by the Special Committee for pre-qualification approval disqualifying the writ petitioners in the pre-qualification bid, the learned Single Judge noticed that when a specialised and technical committee takes a decision, taking into consideration the objections raised by the parties, the writ court is not expected to interfere with the findings rendered by the Special Committee. Moreover, the -:10:- ## W.A.Nos.811 and 813 of 2023 contract in question is a commercial contract ventured by the Kerala Water Authority and therefore, insofar as the qualifications in the notice inviting tenders are concerned, it will have to be viewed from the requirements of the employer. 5. Feeling aggrieved by the judgment dated 11.04.2023 of the learned Single Judge, whereby W.P.(C)Nos.10993 and 10996 of 2023 stand dismissed, the writ petitioners are before this Court in these appeals, invoking the provisions under Section 5 of the Kerala High Court Act, 1958. 6. On 13.04.2023, when the above appeals came up for admission, a Division Bench of this Court restrained the awardee, namely, Midland Engineering and Constructing Company, the 5[th] respondent in these writ appeals from proceeding further, till the next posting date, i.e., 20.04.2023. The said interim order reads thus; “The appellant in this matter was found not qualified on technical evaluation. That is under challenge in the writ petition before the learned Single Judge. The appellant at the same time also pointed out that, the awardee - M/s. Midland Engineering also have no experience. Admittedly, M/s.Midland Engineering claims experience based on a work executed on behalf of Water Authority at Ponnani. Admittedly, that work was awarded to one Sri.Shahul Hameed.V. As per the committee evaluation, it is seen -:11:- W.A.Nos.811 and 813 of 2023 that Joint venture agreement has been entered between Sri.Shahul Hameed.V. and awardee M/s.Midland Engineering along with other two companies. As seen from the observation of the committee, they agreed to make contribution to joint venture. It is not clear what extent of the work done by each of the entity in the joint venture. Though, observation has been made, joint venture agreement has been approved by the Water Authority, but nothing is available on record. 2. On the other hand, the learned counsel for the appellant pointed out that, the joint venture agreement has been cancelled by the Managing Director of Kerala Water Authority and also refers to the letter of the Managing Director dated 28.03.2018 to the effect that the joint venture partner cannot claim experience of the whole work. The experience is a decisive in the matter as it is related works contract by showing actual execution of the work. 3. It is now submitted at the Bar by the learned Senior counsel appearing for the appellant that difference in financial bid is more than one hundred crores and the appellant is the lowest bidder. We are not on that aspect now. The learned standing counsel, Water Authority shall place before this Court whether the joint venture agreement has been approved by the Water Authority and also make available a copy of the Joint venture agreement. The learned standing counsel also shall state on what extent the work executed by the awardee M/s. Midland Engineering can be reflected in respect of actual execution of the work based on the joint venture agreement. It is submitted that the work order has been -:12:- ## W.A.Nos.811 and 813 of 2023 issued and the work has been commenced. We note that The learned Single Judge passed the impugned judgment only on 11.04.2023. The awardee is restrained from all further proceedings till the next posting date.” 7. On 25.04.2023, when the above appeals came up for consideration, the Division Bench passed the following order; “In the interim order dated 13.4.2023 this court had already noticed that the work order had been issued and the work had commenced and despite that, the awardee was restrained from further proceeding till the next posting date. Hence post this appeal on 22.5.2023. Interim will continue till the next posting date.” 8. The orders dated 13.04.2023 and 25.04.2023 in the above appeals were under challenge before the Apex Court in S.L.P(C)Nos.9460-63 of 2023. By the order dated 15.05.2023, those SLPs were disposed of, whereby this Court was requested to hear the writ appeals expeditiously and dispose of the same on its merits. In the order dated 15.05.2023, the Apex Court found no reason to interfere with the impugned orders, since this Court has listed the writ appeals for hearing on 22.05.2023. In the said order, the Apex Court made it clear that, if for any reason there is any impediment to dispose of the writ appeals itself, the High Court may also consider, after hearing the parties, with regard to any modification, if any, required to be made in the impugned -:13:- W.A.Nos.811 and 813 of 2023 orders. 9. The interim order granted by this Court on 13.04.2023, which was extended from time to time is still in force. 10. The above writ appeals were listed before us on 30.05.2023, based on the orders of the Hon'ble the Acting Chief Justice dated 29.05.2023. The learned counsel on both sides were directed to exchange list of authorities, as provided under Rule 95 of the Rules of the High Court of Kerala, 1971, on 30.05.2023 itself and the matter was ordered to be listed on 31.05.2023 at 2.00 p.m., as requested by the learned Senior Counsel for the appellants and also the learned Senior Counsel for the 5[th] respondent. 11. During the pendency of the writ petitions, the petitioner in W.P.(C)No.10996 of 2023 produced Ext.P20 additional special conditions forming part of Ext.P2 general terms and conditions of Ext.P1 e-tender notification, along with I.A.No.1 of 2023. 12. Along with W.A.No.813 of 2023, the appellant has placed on record Annexure 1 application dated 09.02.2023 submitted before the 4[th] respondent Superintending Engineer, invoking the provisions under the Right to Information Act, 2005 to furnish information regarding any other project in PH Circle, -:14:- ## W.A.Nos.811 and 813 of 2023 Malappuram, where the very same technology was used. During the pendency of W.A.No.813 of 2023, the appellant has produced Annexures 2 to 8, along with I.A.No.2 of 2023 filed on 19.04.2023, and I.A.No.3 of 2023 to list the matter before the Bench on 20.04.2023. On 21.05.2023, the appellant filed I.A.No.6 of 2023 to accept Annexures 14 to 21 as additional documents; I.A.No.4 of 2023 to direct the 1[st] respondent Kerala Water Authority to produce the documents relied on in Annexure 15 report, including the Vigilance Report marked as Item No.33; and I.A.No.5 of 2023 seeking an order to implead the members of the committee as additional respondents 7 to 10, in their personal capacity. 13. During the pendency of W.P.(C)No.10993 of 2023, in terms of the directions contained in the order dated 29.03.2023 of the learned Single Judge, the learned Standing Counsel for Kerala Water Authority produced work contract agreements bearing numbers SE/PHC/KKD/67/2022-23 dated 27.03.2023 and SE/PHC/KKD/68/2022-23 dated 28.03.2023, along with a memo dated 30.03.3023. 14. In W.A.No.811 of 2023, the appellant has placed on record Annexure 1 application dated 09.02.2023 submitted before the 4[th] respondent Superintending Engineer, invoking the -:15:- ## W.A.Nos.811 and 813 of 2023 provisions under the Right to Information Act, 2005 to furnish information regarding any other project in PH Circle, Malappuram, where the very same technology was used. During the pendency of W.A.No.811 of 2023, the appellant has produced Annexures 2 to 4, along with I.A.No.2 of 2023 filed on 13.04.2023. On 19.04.2023, pursuant to the direction contained in the order dated 13.04.2023, a copy of order No.KWA/JB/TMU/ 11315/2018 dated 28.03.2019 of the Managing Director KWA; Minutes of Circle level tender evaluation committee held on 19.09.2017; copy of the joint Venture Agreement together with the Mutual agreement dated 07.08.2017; proceedings No.KWA/HO/W/MPM/KIIFB-16-17/TD14/33/2017 of the MD, KWA dated 12.10.2018 awarding the work to the Joint Venture; work order No.SE/PHC/MPM/DB2/694/2017 (Vol I) dated 15.10.2018; agreement dated 17.10.2018 executed by Shahul Hameed in favour of Superintending Engineer; letter of the Superintending Engineer to Executive Engineer dated 20.10.2018; copy of the relevant pages of NIT for the work (scope and Joint Venture pages); copy of the drawing received from Sangli Miraj Kupwad Municipal Corporation, forming part of Ext.P4 and Ext.P5 certificate; and the relevant drawings of clariflocculator of UWSS to Ponnani are produced along with the memo dated -:16:- ## W.A.Nos.811 and 813 of 2023 19.04.2023 of the learned Standing Counsel for Water Authority. On 19.04.2023, the appellant filed I.A.No.4 of 2023 to accept Annexures 5 to 11 as additional documents; and I.A.No.5 of 2023 to list the matter before the Bench on 20.04.2023. On 21.04.2023, the appellant filed I.A.No.6 of 2023 to accept Annexures 12 and 13 as additional documents; and I.A.No.7 of 2023 to list the matter on 25.04.2023. On 22.05.2023, the 5[th] respondent filed I.A.No.8 of 2023 to accept the order dated 15.05.2023 of the Apex Court in S.L.P(C)Nos.9460-63 of 2023 as Annexure R5(a). On 23.05.2023, the appellant filed I.A.No.9 of 2023 to direct the 1[st] respondent Kerala Water Authority to produce the documents relied on in Annexure 15 report, including the Vigilance Report marked as Item No.33; and I.A.No.10 of 2023 seeking an order to implead the members of the committee as additional respondents 7 to 10; and I.A.No.11 of 2023 to accept Annexures 14 to 21 as additional documents. On 25.05.2023, the appellant filed I.A.No.12 of 2023 seeking an order to accept Volume-II of Ext.P1 tender notice issued by the Kerala Water Authority as Annexure 22. On 29.05.2023, the learned Standing Counsel for Kerala Water Authority filed a memo furnishing clarification regarding Ext.P16 decision of the Special Committee for pre-qualification approval, -:17:- ## W.A.Nos.811 and 813 of 2023 to disqualify the appellant. In the said memo, it is stated that the appellant was disqualified since it did not have the necessary technical experience. The Special Committee examined the documents, including the experience certificate submitted by the appellant, and the objections and additional objections raised by the appellant. After going through all the certificates, objections and submissions of the appellant, the Special Committee came to the conclusion that the bidder is not having experience in constructing a similar WTP. Before taking such a decision, the Special Committee examined the clarification received from Sangli Miraj Kupwad Municipal Corporation, Maharashtra. On 31.05.2023, the appellant produced Annexures 23 to 27 as additional documents along with I.A.No.13 of 2023. Thereafter, on 04.06.2023 the appellant produced Annexures 29 to 33 as additional documents along with I.A.No.14 of 2023. 15. In W.A.No.813 of 2023 the appellant filed I.A.No.2 of 2023 producing therewith Annexures 2 to 8 as additional documents; I.A.No.3 of 2023 to list the matter on 20.04.2023; I.A.No.4 of 2023 seeking an order directing the 1[st] respondent Kerala Water Authority to produce the documents relied on in Annexure 15 report, including the Vigilance report marked as Item -:18:- ## W.A.Nos.811 and 813 of 2023 No.33; I.A.No.5 of 2023 seeking an order to implead the members of the Special Committee as additional respondents 7 to 10; I.A.No.6 of 2023 to accept Annexures 14 to 21 as additional documents. 16. Though the appellant in the respective appeals filed I.A.No.10 of 2023 in W.A.No.811 of 2023 and I.A.No.5 of 2023 in W.A.No.813 of 2023 on 21.05.2023, seeking an order to implead the members of the Special Committee as additional respondents 7 to 10, no orders were passed on those interlocutory applications. After the Writ Appeals were listed before us based on the orders of the Honourable the Acting Chief Justice, no arguments were advanced by the learned Senior Counsel for the appellants on the relief sought for in those interlocutory applications. 17. Detailed arguments were heard on 31.05.2023, 01.06.2023, 02.06.2023 and on 05.06.2023. On 02.06.2023, during the course of arguments, it was brought to the notice of this Court that the list of authorities cited by the learned Senior Counsel for the appellants was not furnished to the learned Senior Counsel for the 5[th] respondent and also to the learned Standing Counsel for Kerala Water Authority. Therefore, in the order dated 02.06.2023, we have deprecated in the strongest words the -:19:- ## W.A.Nos.811 and 813 of 2023 conduct of the instructing counsel in not providing the list of authorities to the learned counsel on both sides, despite the specific direction contained in the order dated 30.05.2023. 18. The learned Senior Counsel for the appellant in the respective writ appeals contended that the learned Single Judge went wrong in dismissing the writ petitions declining interference on the order dated 25.03.2023 of the Special Committee for prequalification approval to the extent the appellant in the respective appeals is disqualified and respondents 5 and 6 are pre-qualified. The legal and factual contentions raised by the appellant in the respective writ petitions were not properly appreciated by the learned Single Judge. In order to buttress the said contention, the learned Senior Counsel for the appellants placed reliance on the additional documents produced as Annexures 2 to 33 in W.A.No.811 of 2023 and also the law laid down by the Apex Court in various decisions. 19. On the other hand, the learned Senior Counsel for the 5[th] respondent contended that, in the impugned judgment, the learned Single Judge rightly declined interference stating valid reasons. The appellant in the respective writ appeals, who were disqualified by the Special Committee for pre-qualification -:20:- ## W.A.Nos.811 and 813 of 2023 approval on the ground that they do not possess the required past experience as per clause 7.12.1.2.8 of Ext.P2 General terms and conditions of Ext.P1 e-tender notification, cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, challenging Ext.P16/P18 order. The learned Senior Counsel would place reliance on various decisions of the Apex Court in order to buttress the said contention, including the decision of the Apex Court in **Tata Motors Limited v. Brihan Mumbai Electric Supply and Transport Undertaking (BEST) [2023 SCC OnLine SC 671]** . The learned Standing Counsel for Kerala Water Authority would also contend that the reasoning of the learned Single Judge in the impugned judgment for declining interference on Ext.P16/P18 order dated 25.03.2023 of the Special Committee for pre-qualification approval warrants no interference in these appeals. 20. The work tendered vide Ext.P1 e-tender notification dated 13.09.2022 is in respect of the work JJM Phase II - WSS to Chathamangalam and adjoining panchayats in Kozhikode District - the construction of 14 m dia intake well-cum-pump house, supplying, laying, testing and commissioning of raw water pumping main, gravity main from Water Treatment Plant (WTP) to -:21:- ## W.A.Nos.811 and 813 of 2023 existing 18 MLD sump, wastewater pipeline from WTP and allied structures, construction and commissioning of 100 MLD water treatment plant at Koolimadu and supplying, laying, testing and commissioning of 1200 mm MS CWPM from WTP to 60 LL MBSR at Thanikkodumala, CWGM from MBSR at Thanikkodumala to various reservoirs, construction of 3 LL sump-cum-pump house, online booster station, supply and erection of CW pump sets and allied structures. 21. As per Ext.P1 e-tenders are invited from registered class A contractors of the Kerala Water Authority or contractors registered in other departments in the State of Kerala or in other States in India or in equivalent class and the manufacturers eligible for A class licence from the Kerala Water Authority or reputed contracting firms in India. In Ext.P1 it is specified that the tenderers shall have experience in implementing similar works. The nature of works specified in Ext.P2 general terms and conditions of Ext.P1 e-tender notification read thus; “Construction of intake well-cum-pump house, supplying, laying, testing and commissioning of raw water pumping main, construction and commissioning of 100 MLD water treatment plant and allied structures at Koolimadu, Substations and allied electrics at intake and WTP, raw water and clear water pump sets, supplying, laying, testing -:22:- ## W.A.Nos.811 and 813 of 2023 and commissioning of MS clear water pumping main from WTP to reservoir at Thanikkodumala, clear water transmission main from reservoir at Thanikkodumala to various service reservoirs, construction of sump-cum-pump house at Kizhakkoth and online booster station at Puthupady.” 22. Part I of Ext.P2 general terms and conditions (Section 7) deals with prequalification of tenderers. As per clause 7.4, the tenderers who have submitted bids shall be considered as prequalified for consideration of their bids further only if the tenderer has the technical know-how, standing experience and proven reputation in similar works. The criteria for past experience counted shall be as per clause 7.17.1.2. The provisions under clause 7.4.1 are attracted in case the tender is submitted by a joint venture. Clause 7.4.2 deals with change in the firm’s constitution. As per clause 7.4.2.2, the contractor shall not, without the previous sanction in writing of the authority accepting the tender, execute any power of attorney in respect of any matter implying the contract and any such power of attorney executed without such sanctions shall not recognised by or binding upon the authority either to grant such sanction or to refuse it or revoke a sanction once given. -:23:- ## W.A.Nos.811 and 813 of 2023 23. Clause 7.15 deals with authority accepting the tender. As per clause 7.15 the final acceptance of the tender vests with the Managing Director/Kerala Water Authority, which is not bound to accept the lowest tender or assign any reason for rejecting any tender. The authority reserves to itself the right of re-advertising the tender for the work for carrying out the work in any manner that may be deemed fit, subsequent to the invitation of tender. 24. Clause 7.16 deals with evaluation of tender, Clause 7.17 deals with evaluation of prequalification application and Clause 7.17.1 deals with minimum eligibility criteria for prequalification. As per clause 7.17.1, the applicant must be wellestablished contractor/reputed firm/manufacturer with experience and capabilities in executing the work similar to the work tendered. The applicant can either be single or a joint venture as per clause 7.4.1. The minimum qualification expected for eligibility for prequalification will be based on (i) financial standing (ii) past experience (iii) organisational capacity and technical capacity. Clause 7.17.1.2 deals with past experience. As per clause 7.17.1.2.4, the experience of a joint venture does not pre-qualify any of its partners individually. In the case of dissolution of the joint venture, a partner can claim experience only for that part of -:24:- W.A.Nos.811 and 813 of 2023 the scope of work for which he was responsible as a partner in the joint venture, as certified by the agreement authority. 25. Clause 7.17.1.2.5 deals with the construction of civil structures, except water treatment plant (WTP) and sewage treatment plant (STP). As per sub-clause (a), the bidder must have experience of having successfully completed a single work (which includes any RCC structure like overhead water tank, ground level tank, sump/weir/intake well/framed RCC buildings/ Stadium, godowns, subways, tunnels, underpass, warf, jetty/ bridges aqueduct/culvert/retaining wall/water treatment plant/ sewage treatment plant, etc.) worth minimum 40% of the cost of major civil component included in this particular tender (viz. intake structure and sumps) for his sole/joint venture/partner of the joint venture within the last five years. Annual escalation at the rate 5% (simple interest) will be allowed for the cost of works completed in the previous years. As per clause (b), no experience is required for components in the scope of work of projects costing less than 10% of the estimated probable amount of contract (PAC). 26. Clause 7.17.1.2.7 deals with construction of Water Treatment Plant above 5 MLD output capacity. As per clause -:25:- ## W.A.Nos.811 and 813 of 2023 7.17.1.2.7, the bidder must have constructed a water treatment plant in the past with any technology for a minimum of 40% output capacity subject to a maximum of 40 MLD for his sole/joint venture/partner of the joint venture. Clause 7.17.1.2.8 deals with construction of water treatment plants with modern technology (except conventional filters, lamella, plate settler, tube settler). As per sub-clause (a), the bidder must have constructed a Water Treatment Plant in the past with any Technology for a minimum of 40% output capacity subject to a maximum of 40 MLD for his sole/joint venture/partner of the joint venture. As per sub-clause (b), in addition to the above, the bidder must have constructed a water treatment plant in the past with similar technology for a minimum of 10% output capacity of the proposed treatment plant for his sole/joint venture/partner of the joint venture. If the bidder has 40% experience in the same innovative technology, no further experience in conventional technology is required. 27. Clause 7.17.1.2.9 deals with rehabilitation works of Water Treatment Plant; clause 7.17.1.2.10 deals with O&M works of Water Treatment Plant; clauses 7.17.1.2.13 to 7.17.1.2.15 deals with supplying and laying of Water Supply pipes of various diameter; clause 7.17.1.2.16 deals with supply and installation of -:26:- ## W.A.Nos.811 and 813 of 2023 pumps and motors, transformer and other electrical equipment; and clauses 7.17.1.2.17 to 7.17.1.2.19 deals with supplying and laying of sewerage pipes of various diameter. 28. As per clause 7.17.1.2.20, the tenderer shall submit sufficient testimonials from the clients for whom he has executed similar type of work during the past five years. The tenderer shall also furnish past performance data of the works carried out by him in format Q1 and Q3. The tenderer shall also furnish his commitments in respect of work in hand on the date of pre-bid meeting of this tender in format Q2. As per 7.17.1.2.21, certificates of experience issued by the Agreement Executing Authority or an Officer in charge of the plant/pipeline work not below the rank of Executive Engineer of Central State Government/Public Sector undertakings only will be considered for evaluation. In the case of subcontractors/sublet works, the experience will be reckoned only if there is a provision in the original contract for subletting/subcontracting and such sub contractors are approved by the original client. Also in such cases, certificates issued by the original client (not by the contractor) shall only be considered towards experience. The date of award of such works, date of the agreement, and period of completion as -:27:- ## W.A.Nos.811 and 813 of 2023 per the agreement and actual date of completion should be mentioned. The certificates furnished will be verified, if required. In case any poor/false performance in the works undertaken by the tenderer is evident on verification, the offer will not be further considered/processed. In the case of the construction of sewage treatment plant, the experience certificate issued by the agreement executing authority of registered private firms will also be considered as provided in clauses 7.17.1.2.11 and 7.17.1.2.12. 29. The appellant in W.A.No.811 of 2023, Laxmi Civil Engineering Services Pvt. Ltd., is claiming past experience under clause 7.17.1.2.8 of Ext.P2 general terms and conditions, on the basis of Ext.P3 work completion certificate dated 17.02.2021 issued by the Water Works Engineer, Water Supply Department, Sangli Miraj Kupwad Municipal Corporation. In Ext.P3 it is certified that Laxmi Civil Engineering Services Pvt. Ltd. has executed and successfully completed and commissioned the work of designing, providing, constructing, commissioning, operation and maintenance of 70 MLD modern water treatment plant at Malbanglow WTP site Sangli, Tal: Miraj, District: Sangli under UIDSSMT (Package 4.1) under the corporation, vide work order No.SMKMC/WSS/DIV/SA/524/12-13 dated 13.09.2012. As per -:28:- ## W.A.Nos.811 and 813 of 2023 Ext.P3, the executed work consists of the following main components; “Designing, Providing, Constructing, successfully water tightness test, Water Treatment Plant for 70 MLD Capacity with modern technology (i.e., Instrumentation, Automation, PLC and SCADA System, Flow Meter, Monitor, display panel, networking, control panel with power backup arrangement, etc. having Cost Rs.4,93,45,000/-) Consisting of pipe lines, inlot works, cascade aerator, Parshall flume, Raw water Channel to Distribution Chamber for Rapid Coagulant Mixing Unit (Hydraulic/Mechanical Flocculation Process Unit), flocculation–Settling facility (settling unit/clarification system), High rate filters, Overhead Backwash water storage Tank, Backwash wastewater sump, Sludge sump for clariflocculator, Filtered Water sump for backwash tank filling, Sludge Recirculation System, Chemical House for chemical storage and installation of Chemical Dosing System, Poly-aluminum chloride storage tank and unloading facility, Filter Annexure for Blower Room, Backwash Tank filling pump, MCC and control panel building, Laboratory, chlorination Shed, Filtered Water Outlet Channel with flow measurement, Administrative Building & Rest house, Area drainage and internal roads, tree plantation, landscaping and internal & external electrical works and mechanical works etc.” 30. Along with Ext.P3 work completion certificate, the appellant produced Ext.P4 completion certificate dated 06.05.2019 issued by the Executive Engineer, Chhindwara -:29:- ## W.A.Nos.811 and 813 of 2023 Municipal Corporation, wherein it is certified that Laxmi Civil Engineering Services Pvt. Ltd. has executed and successfully completed the work of design, erection and commissioning of 3 numbers of 40 HP submersible pumps and floating platform to draw water from minimum 2 meters depth at Machagora Dam site for Chhindwara WSS under AMRUT by the Corporation, vide work order No.7134/NPN/PWD/2019 dated 06.03.2019. 31. The 4[th] respondent Superintending Engineer, PH Circle, Kozhikode sought clarification on the technology used in the work referred to in Ext.P3 work completion certificate from Sangli Miraj Kupwad Municipal Corporation. Based on that request, the Water Works Engineer, Water Supply Department, Sangli Miraj Kupwad Municipal Corporation, issued Ext.P5 clarification, wherein it is clarified that the technology used for the clarifier is new modern technology with clarifiers of upward flow sludge blanket with plate settlers. The clarification in Ext.P5 reads thus; “With reference to your email dated 28[th] October 2022 regarding the clarification for the work designing, providing, constructing, commissioning, operation and maintenance of 70 MLD modern water treatment plant at Malbanglow WTP site Sangli, Tal: Miraj, District: Sangli under UIDSSMT (Package 4.1) under the corporation, vide work order No.SMKMC/WSS/ DIV/SA/524/12-13 dated 13.09.2012. -:30:- ## W.A.Nos.811 and 813 of 2023 We would like to inform you that the technology used for the clarifier is new modern technology with clarifiers of upward flow sludge blanket with plate settlers. The above mentioned work was completed and commissioned on 30.12.2017. The total operation and maintenance period of the said work is in progress up to 01.01.2028” (underline supplied) 32. Ext.P5 clarification was followed by Ext.P6 clarification issued by the Water Works Engineer, Water Supply Department, Sangli Miraj Kupwad Municipal Corporation, wherein it is clarified that though the technology specified in the tender for the clarifier was new modern technology with clarifiers of upward flow sludge blanket with plate settlers, tube settlers have been installed as per the instructions of the department, as per site conditions. The clarification in Ext.P6 reads thus; “With reference to your email dated 28[th] October 2022 regarding the clarification for the work designing, providing, constructing, commissioning, operation and maintenance of 70 MLD modern water treatment plant at Malbanglow WTP site Sangli, Tal: Miraj, District: Sangli under UIDSSMT (Package 4.1) under the corporation, vide work order No.SMKMC/WSS/ DIV/SA/524/12-13 dated 13.09.2012. We would like to inform you that the technology used for tender the clarifier is new modern technology with clarifiers of upward flow sludge blanket with plate settlers but Tube Settlers have been installed as per the instructions of the -:31:- W.A.Nos.811 and 813 of 2023 ## department, as per site conditions. The above mentioned work was completed and commissioned on 30.12.2017. The total operation and maintenance period of the said work is in progress up to 01.01.2028” (underline supplied) 33. The very same work completion certificate dated 17.12.2021 issued by the Water Works Engineer, Water Supply Department, Sangli Miraj Kupwad Municipal Corporation, completion certificate dated 06.05.2019 issued by the Executive Engineer, Chhindwara Municipal Corporation, and the two clarifications issued by the Water Works Engineer, Water Supply Department, Sangli Miraj Kupwad Municipal Corporation are placed on record as Exts.P3, P4 and P5 in W.P.(C)No.10996 of 2023 filed by Reena Engineering and Constructions Pvt. Ltd., the appellant in W.A.No.813 of 2023, for claiming past experience under clause 7.17.1.2.8 of Ext.P2 general terms and conditions. The averments in paragraph 4 of W.P.(C)No.10996 of 2023 would show that Reena Engineering and Constructions Pvt. Ltd. submitted bid pursuant to Ext.P1 e-tender notification, in joint venture with Laxmi Civil Engineering Services Pvt. Ltd., on the strength of Exts.P3, P4 and P5 completion certificates issued to Laxmi Civil Engineering Services Pvt. Ltd. -:32:- ## W.A.Nos.811 and 813 of 2023 34. The document marked as Ext.P7 in both the writ petitions is a certificate dated 12.05.2021 issued by the Executive Engineer, Kerala Water Authority, Project Division, Malappuram, in respect of work order No.SE/PHC/MPM/DB2/694/2017(Vol.1) dated 15.10.2018, wherein it is certified that the 5[th] respondent Midland Engineering and Contracting Company, has completed and commissioned satisfactorily the work of 50 MLD capacity water treatment plant with rectangular flat bottom sludge blanket clariflocculator with plate settler, filter chamber with dual filter and nozzles and SCADA. The said work was executed under KIIFB Special Investment Package - WRD 002-06-CWSS to Ponnani Municipality and adjoining villages – Package - I. The nature of work as per Ext.P7 is construction of 12m dia well-cum-pump house, supplying, laying, testing and commissioning (1016mm OD, 10mm thick) MS raw water pumping main, construction and commissioning of 50 MLD (2200 m3/hr.), WTP, sump and allied works, construction of compound wall, staff quarters (8 no.), conference hall, store building, including demolition of old structures, etc. 35. The document marked as Ext.P9 in both the writ petitions is a copy of the reply dated 28.02.2023 of the Public -:33:- ## W.A.Nos.811 and 813 of 2023 Information Officer in the office of the 4[th] respondent Superintending Engineer, addressed to one Prasoon M.P., furnishing the said person, information under the provisions of the Right to Information Act, 2002, based on his application dated 09.02.2023. In Ext.P9 it is stated as follows; “This office have not undertaken any such works, as shown in the drawing submitted by you, using flat bottom upward flow sludge blanket technology.” (underline supplied) 36. A copy of the application dated 09.02.2023 made by the said Prasoon is not placed on record. The nature of the information sought for in that application is not disclosed in the writ petitions. The averments in the writ petitions would not disclose whether the said Prasoon is a third party or an employee of the writ petitioner. In paragraph 13 of the respective writ petitions, it is averred that “the Kerala Water Authority later attested under the RTI Act that it had not undertaken any work using flat bottom upward sludge blanket technology.” 37. The document marked as Ext.P10 in W.P.(C)No. 10993 of 2023 [Ext.P12 in W.P.(C)No.10996 of 2023] is a copy of the work order No.SE/PHC/MPM/DB2/964/2017(Vol.1) dated 15.10.2018 of Superintending Engineer, PH Circle, Malappuram awarding a work under KIIFB Special Investment Package - WRD -:34:- ## W.A.Nos.811 and 813 of 2023 002-06-CWSS to Ponnani Municipality and adjoining villages – Package - I, to one Shahul Hameed V., Varikkodan House, Down Hill, Malappuram. The nature of the work as per Ext.P10 is construction of 12m dia well-cum-pump house, supplying, laying, testing and commissioning (1016mm OD, 10mm thick) MS raw water pumping main, construction and commissioning of 50 MLD (2200 m3/hr.), WTP, sump and allied works, construction of compound wall, staff quarters (8 no.), conference hall, store building, etc. 38. After the averment in paragraph 13 of the writ petitions that the Kerala Water Authority attested in Ext.P9 reply under the RTI Act that it had not undertaken any work using flat bottom upward sludge blanket technology, it is averred in paragraph 14 of W.P.(C)No.10993 of 2023 [in paragraph 15 of W.P.(C)No.10996 of 2023] that, though the petitioner could not find any work awarded either to Midland Engineering and Contracting Company [5[th] respondent] or Joseph John [6[th] respondent] reflected in Exts.P7 and P8 experience certificates dated 12.05.2021, the petitioner came across an order of Superintending Engineer awarding the work to one Shahul Hameed. -:35:- ## W.A.Nos.811 and 813 of 2023 39. The materials on record would show that Shahul Hameed is the Managing Partner of the 5[th] respondent Midland Engineering and Contracting Company. The said fact is not disputed by the appellant in the respective writ appeals. A combined reading of the averments in paragraphs 13 and 14 of W.P.(C)No.10993 of 2023 [in paragraphs 13 and 15 of W.P.(C)No.10996 of 2023] would make it explicitly clear that the petitioner in the respective writ petitions is admitting the fact that the work covered by Ext.P10 work order in W.P.(C)No.10993 of 2023 [Ext.P12 in W.P.(C)No.10996 of 2023], i.e., work order No.SE/PHC/MPM/DB2/694/2017(Vol.1) dated 15.10.2018, satisfy the past experience as provided in clause 7.17.1.2.8 of Ext.P2 general terms and conditions of Ext.P1 e-tender notification, which deals with the construction of water treatment plants with modern technology (except conventional filters, lamella, plate settler, tube settler). A reading of Ext.P7 certificate dated 12.05.2021 in both the writ petitions, issued by the Executive Engineer, Kerala Water Authority, Project Division, Malappuram, would show that the said certificate is one issued in respect of the very same work order, i.e., work order No.SE/PHC/MPM/ DB2/694/2017(Vol.1) dated 15.10.2018, wherein it is certified that the 5[th] respondent Midland -:36:- W.A.Nos.811 and 813 of 2023 Engineering and Contracting Company, has competed and commissioned satisfactorily the work of 50 MLD capacity water treatment plant with rectangular flat bottom sludge blanket clariflocculator with plate settler, filter chamber with dual filter and nozzles and SCADA. 40. The document marked as Ext.P13 in W.P.(C)No.10993 of 2023 is a copy of the counter affidavit filed by respondents 1 to 4 in W.P.(C)No.38042 of 2022. That writ petition was one filed by the appellant in W.A.No.813 of 2023, challenging Ext.P11 order dated 18.12.2022 of the 4[th] respondent Superintending Engineer, PH Circle, Kozhikode, whereby all the bidders were disqualified on the ground that they were not having the required experience as per clause 7.17.1.2.8 of Ext.P2 general terms and conditions of Ext.P1 e-tender notification. In the said counter affidavit, respondents 1 to 4 contended that the committee for prequalification of bidders considered the certificate produced by the appellant in W.A.No.813 of 2023 to prove the experience in WTP of 70 MLD under UIDSSMT Project for Sangli Miraj Kupwad Municipal Corporation, Maharashtra. The committee could not satisfy that the Water Treatment Plant constructed by Laxmi Civil Engineering Services Pvt. Ltd., the appellant in W.A.No.811 of -:37:- ## W.A.Nos.811 and 813 of 2023 2023, and the joint venture partner of the appellant in W.A.No.813 of 2023, is of the type required as per clause 7.17.1.2.8 of Ext.P2 general terms and conditions. 41. In paragraph 8 of the counter affidavit filed by respondents 1 to 4 in W.P.(C)No.38042 of 2022, which is marked as Ext.P13 in W.P.(C)No.10993 of 2023, it is stated that in reply to various queries raised by the prospective bidders, during the pre-bid meeting held on 20.09.2022, the required experience as per clause 7.17.1.2.8 was elaborated and clarified. It was informed that the proposed WTP is with flat bottom, rectangular upward flow sludge blanket type clariflocculator and hence experience in constructing a similar type of WTP will be considered for pre-qualification. In the e-tender platform, the minutes of the meeting were uploaded and made visible to all participants. A copy of the minutes of pre-bid queries is marked as Ext.R1(a) in Ext.P13 counter affidavit. Sl.No.4 of the pre-bid queries deals with clause 7.17.1.2.8 of Ext.P2 general terms and conditions of Ext.P1 e-tender notification, which deals with the construction of water treatment plants with modern technology (except conventional filters, lamella, plate settler, tube settler). Sl.No.4 of the pre-bid queries read thus; -:38:- ## W.A.Nos.811 and 813 of 2023 |Sl.<br>No<br>.|Vol/<br>Sec<br>tion|Clause/<br>Page<br>No.|Subject|Bidders<br>question/<br>Query/<br>Clarification/<br>Comment|Clarification by<br>Superintendent<br>Engineer, PH Circle,<br>Kozhikode| |---|---|---|---|---|---| |xx|xx|xx|xx|xx|xx| |4|Nit<br>Vol<br>.1|7.17.1|Construction of Water|Kindly<br>define|By<br>“Modern<br>Technology” it is<br>meant<br>that<br>“technology other<br>than conventional<br>filters,<br>Lamella/Plate<br>settler/tube<br>settler<br>type<br>of<br>clarifiers.”<br>In<br>this<br>work,<br>rectangular<br>shape,<br>flat<br>bottom,<br>upward<br>flow<br>sludge<br>blanket<br>type<br>flocculator<br>and<br>clarifier<br>supplemented<br>with plate settlers<br>for clarification is<br>included.<br>Here<br>the<br>requirement is,<br>(a) Experienc<br>e<br>of<br>constructing<br>WTP of 40 MLD<br>capacity<br>or<br>more with any<br>technology.<br>(b) In addition<br>to above, must<br>have<br>experience<br>in<br>constructing<br>WTP of 10 MLD<br>or more with<br>Clariflocculator<br>of rectangular<br>shape<br>flat<br>bottom,<br>upward<br>flow<br>sludge blanket<br>type<br>flocculator and<br>clarifier.<br>(c) If<br>the<br>bidder has the<br>experience of<br>constructing<br>WTP<br>with<br>Clariflocculator| |||.2.8|Treatment Plants with<br>modern<br>technology|WTP<br>with<br>modern|| |||Page.3|<br>(except Conventional|technology.|| |||4|Filters, Lamella, Plate<br>settler, Tube settler):-<br>(a) Must<br>have<br>constructed<br>a<br>Water<br>Treatment<br>Plant in the past<br>with<br>any<br>Technology for a<br>minimum of 40%<br>output<br>capacity<br>subject<br>to<br>a<br>maximum<br>of<br>40<br>MLD<br>for<br>his<br>sole/Joint<br>Venture/Partner of<br>the Joint Venture.<br>(b) In addition to<br>the above, must<br>have constructed a<br>Water<br>Treatment<br>Plant in the past<br>with<br>similar<br>technology for a<br>minimum of 10%<br>output capacity of<br>the<br>proposed<br>treatment plant for<br>his<br>sole/Joint<br>Venture/Partner of<br>the Joint Venture.<br>(If the bidder has<br>40% experience in<br>the<br>same<br>innovative<br>technology,<br>no<br>further experience<br>in<br>conventional<br>technology<br>is<br>required)|<br>Bidder<br>understanding<br>of<br>modern<br>technology is a<br>sophisticated<br>membrane<br>based filtration<br>system or like<br>technology.<br>Please confirm.<br>Bidder<br>understanding<br>is that capacity<br>of<br>water<br>treatment plant<br>with<br>any<br>Technology for<br>a minimum of<br>40%<br>output<br>capacity<br>subject<br>to<br>a<br>minimum of 40<br>MLD.<br>Bidder<br>understanding<br>of construction<br>of<br>Water<br>Treatment<br>Plant<br>in<br>the<br>past<br>with<br>similar<br>technology for<br>a minimum of<br>10%<br>output<br>capacity of the<br>proposed<br>treatment plant<br>is<br>that<br>WTP<br>having<br>component<br>of<br>Flash<br>mixer,<br>clariflocculator<br>gravity filters,<br>chlorine<br>contact tanks.<br>Please confirm|| -:39:- ## W.A.Nos.811 and 813 of 2023 ||||||of rectangular<br>shape<br>flat<br>bottom,<br>upward<br>flow<br>sludge blanket<br>type<br>flocculator and<br>clarifier<br>of<br>capacity<br>40MLD<br>or<br>more, then no<br>separate<br>experience<br>is<br>needed.| |---|---|---|---|---|---| |xx|xx|xx|xx|xx|xx| 42. In paragraph 8 of the counter affidavit filed by respondents 1 to 4 in W.P.(C)No.38042 of 2022, which is marked as Ext.P13 in W.P.(C)No.10993 of 2023, it is stated that the experience certificate submitted by the bidder [appellant in W.A.No.813 of 2023] did not clearly specify the type clariflocculator, which forms the major component of the WTP, and decisive upon the efficiency of the process of water treatment. Since the WTP constructed by the bidder [appellant in W.A.No.813 of 2023] is a conventional type, the committee came to the conclusion that it was not the type of technology and process prescribed in clause 7.17.1.2.8 of Ext.P2 general terms and conditions of Ext.P1 e-tender notification and later clarified in Annexure R1(a). As already noticed hereinbefore, the appellant in W.A.No.813 of 2023 submitted bid pursuant to Ext.P1 e-tender notification, in joint venture with the appellant in W.A.No.811 of 2023, on the strength of Exts.P3, P4 and P5 completion certificates -:40:- ## W.A.Nos.811 and 813 of 2023 issued to that bidder. 43. The appellants have not chosen to produce any materials before the learned Single Judge to show that Exts.P3, P4 and P5 certificates issued to Laxmi Civil Engineering Services Pvt. Ltd., the petitioner in W.P.(C)No.10993 of 2023 are for the type of technology and process prescribed in clause 7.17.1.2.8 of Ext.P2 general terms and conditions of Ext.P1 e-tender notification. A reading of Ext.P6 clarification issued by the Water Works Engineer, Water Supply Department, Sangli Miraj Kupwad Municipal Corporation, would make it explicitly clear that though the technology prescribed in the tender process was modern technology with clarifiers of upward flow sludge blanket with plate settlers, tube settlers have been installed as per the instructions of the department, as per site conditions. Therefore, the irresistible conclusion that can be drawn is that the appellant in both the writ appeals does not have the required experience as per clause 7.17.1.2.8 of Ext.P2 general terms and conditions of Ext.P1 e-tender notification. In that view of the matter, the reasoning of the Special Committee for pre-qualification approval in Ext.P16 minutes and order dated 25.03.2023 in W.P.(C)No.10993 of 2023 [Ext.P18 in W.P.(C)No.10996 of 2023] -:41:- ## W.A.Nos.811 and 813 of 2023 to disqualify the appellant in both the writ appeals cannot be said to be either perverse or patently illegal. 44. Clause 7.17.1.2.4 of Ext.P2 general terms and conditions of Ext.P1 e-tender notification deals with the experience of a joint venture. As per the said clause, the experience of a joint venture does not pre-qualify any of its partners individually. In the case of dissolution of the joint venture, a partner can claim experience only for that part of the scope of work for which he was responsible as a partner in the joint venture, as certified by the agreement authority. 45. In the case of the 5[th] respondent Midland Engineering and Contracting Company, it has been certified in Ext.P7 certificate dated 12.05.2021 issued by the Executive Engineer, Kerala Water Authority, Project Division, Malappuram, in respect of work order No.SE/PHC/MPM/DB2/694/2017(Vol.1) dated 15.10.2018, that the said respondent has competed and commissioned satisfactorily the work of 50 MLD capacity water treatment plant with rectangular flat bottom sludge blanket clariflocculator with plate settler, filter chamber with dual filter and nozzles and SCADA. 46. In respect of the aforesaid work, Shahul Hameed, the -:42:- ## W.A.Nos.811 and 813 of 2023 Managing Partner of the 5[th] respondent Midland Engineering and Contracting Company has been issued with Ext.P10 work order in W.P.(C)No.10993 of 2023 [Ext.P12 in W.P.(C)No.10996 of 2023]. As already noticed hereinbefore, a combined reading of the averments in paragraphs 13 and 14 of W.P.(C)No.10993 of 2023 and that contained in paragraphs 13 and 15 of W.P.(C)No.10996 of 2023 would make it explicitly clear that the petitioner in the respective writ petitions is admitting the fact that the said work would satisfy the past experience as provided in clause 7.17.1.2.8 of Ext.P2 general terms and conditions of Ext.P1 e-tender notification, which deals with the construction of water treatment plants with modern technology (except conventional filters, lamella, plate settler, tube settler). 47. The Special Committee for pre-qualification approval in Ext.P16 minutes and order dated 25.03.2023 in W.P.(C)No.10993 of 2023 [Ext.P18 in W.P.(C)No.10996 of 2023] considered the eligibility of the 5[th] respondent Midland Engineering and Contracting Company with reference to Clauses 2 and 14 of the mutual agreement entered along with the joint venture agreement dated 07.08.2014, in respect of work order No.SE/PHC/MPM/ DB2/694/2017(Vol.1) dated 15.10.2018. The Special Committee -:43:- ## W.A.Nos.811 and 813 of 2023 found that the joint venture agreement for the said work for the construction of 50 MLD WTP at Ponnani was executed between (i) K. Gowda and Company, (ii) Ramesh Engineers and Contractors, (iii) Sushanva Engineers and Builders and (iv) Shahul Hameed, on 07.08.2017, and the agreement with the Kerala Water Authority for the said work was executed on 17.10.2018. 48. The Special Committee noticed that, as per the mutual agreement in Clause 2 of the joint venture agreement, the parties have agreed that, considering the nature of work to be executed, as its components are so inseparable and interlinked, which cannot be executed in a severed manner, the most desirable form of executing the project will be in a joint manner. The parties, therefore, agreed to make contribution to the joint venture accordingly. As per Clause 14 of the joint venture agreement, the parties have agreed that, upon termination/dissolution/closure of the joint venture agreement, the experience gained out of the work can be used by the parties to the agreement independently, since the work was executed jointly. 49. The Special Committee, taking note of Clauses 2 and 14 of the mutual agreement entered along with the joint venture agreement dated 07.08.2014, which forms part of the contract -:44:- ## W.A.Nos.811 and 813 of 2023 agreement dated 17.10.2018 entered into by the joint venture with the Kerala Water Authority, came to a conclusion in Ext.P16 minutes and order dated 25.03.2023 in W.P.(C)No.10993 of 2023 [Ext.P18 in W.P.(C)No.10996 of 2023] that Ext.P7 certificate dated 12.05.2021 issued by the Executive Engineer, Kerala Water Authority, Project Division, Malappuram in favour of Shahul Hameed, who is the Managing Partner of the 5[th] respondent, can be accepted as the experience of the partnership firm. In the impugned judgment, after referring to the law laid down by the Apex Court in **Ganpati RV-Talleres Alegria Track (P) Ltd. v.** **Union of India [(2009) 1 SCC 589]** , in respect of the determination to be done in the case of a joint venture company when the eligibility certificate is issued in the name of the joint venture partners, the learned Single Judge declined interference on Ext.P16 minutes and order dated 25.03.2023 in W.P.(C)No.10993 of 2023 [Ext.P18 in W.P.(C)No.10996 of 2023]. 50. In the impugned judgment, the learned Single Judge noticed that the Special Committee has examined the entire pros and cons of the matter and arrived at its own conclusions, taking into account the contentions advanced and the documents produced by the respective bidders. Even though the writ -:45:- ## W.A.Nos.811 and 813 of 2023 petitioners have raised contentions with respect to the ineligibility of respondents 5 and 6 to prequalify, it cannot be said that the evaluation done by the Special Committee is in any way illegal, arbitrary, perverse or out of any extraneous consideration or vitiated by mala fides. A full-fledged hearing and participation were given to all the bidders by the Special Committee consisting of technically qualified persons and the writ petitioners failed to establish any case of illegality, arbitrariness or any other legal infirmities to arrive at a different conclusion than the one arrived at by the said committee, warranting interfere with the consequential order passed by the tender authority disqualifying the writ petitioners. 51. In the impugned judgment, the learned Single Judge relied on the decision of the Apex Court in **N.G. Projects Ltd. v.** **Vinod Kumar Jain [(2022) 6 SCC 127]** wherein, in the context of judicial review in cases involving tenders, the Apex Court held that the writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The writ court does not have the expertise to examine the terms and conditions of the present-day economic activities of the State and this limitation should be kept in mind. -:46:- ## W.A.Nos.811 and 813 of 2023 The court should be even more reluctant in interfering with contracts involving technical issues as there is a requirement for the necessary expertise to adjudicate upon such issues. The approach of the court should be not to find fault with magnifying glasses in its hands, rather the court should examine as to - whether the decision making process is after complying with the procedure contemplated by the tender conditions. If the court finds that there is total arbitrariness or that the tender has been granted in a mala fide manner, still the court should refrain from interfering in the grant of tender and relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against the public interest. Therefore, the State and its citizen suffer twice, firstly by paying escalation costs and secondly by being deprived of the infrastructure for which the present-day Governments are expected to work. 52. While dismissing the writ petitions, in the absence of any reason to interfere with the orders passed by the Special Committee disqualifying the writ petitioners in the prequalification bid, the learned Single Judge noticed that when a -:47:- ## W.A.Nos.811 and 813 of 2023 specialised and technical committee takes a decision, taking into consideration the objections raised by the parties, the writ court is not expected to interfere with the findings rendered by the Special Committee. Moreover, the contract in question is a commercial contract ventured by the Kerala Water Authority and therefore, insofar as the qualifications in the notice inviting tenders are concerned, it will have to be viewed from the requirements of the employer. ## 53. In **Agmatel India (P) Ltd. v. Resoursys Telecom** **[(2022) 5 SCC 362]** the Apex Court held that the author of the tender document is taken to be the best person to understand and appreciate its requirements; and if its interpretation is manifestly in consonance with the language of the tender document or subserving the purchase of the tender, the court would prefer to keep restraint. The technical evaluation or comparison by the court is impermissible; and even if the interpretation given to the tender document by the person inviting offers is not as such acceptable to the constitutional court, that, by itself, would not be a reason for interfering with the interpretation given. 54. In **Tata Motors Limited v. Brihan Mumbai Electric Supply and Transport Undertaking (BEST) [2023 SCC** -:48:- W.A.Nos.811 and 813 of 2023 **OnLine SC 671]** , a decision relied on by the learned Senior Counsel for the 5[th] respondent, the Apex Court was dealing with a case in which Brihan Mumbai Electric Supply and Transport Undertaking (BEST) floated a tender on 26.02.2022 for the supply, operation and maintenance of 1400 (+50% variation) Single Decker AC Electric Buses with drivers, for the purpose of public transport service within the city of Mumbai along with other civil infrastructure development at the BEST depots for a period of 12 years. The Tender bids were opened on 04.05.2022 and the technical suitability evaluation was announced on 06.05.2022. BEST in its technical suitability evaluation dated 06.05.2022, held TATA Motors Limited (TATA Motors) along with four other bidders, to be technically non-responsive. The bid of TATA Motors was rejected on account of technical deviation with respect to the operating range in Annexure F and Annexure Y. The bid offered by EVEY Trans Pvt. Ltd. (EVEY) in the said report was deemed to be technically responsive. Thereafter, on 06.05.2022, the price bids of the eligible bidders were opened, and EVEY was declared to be the L1 bidder. The price bid of TATA Motors was not opened in accordance with Sr. No.7 of Schedule I (invitation for proposal) and Sr. No.15 of Schedule II (definitions and instructions to -:49:- ## W.A.Nos.811 and 813 of 2023 tenderers) of the tender document. Aggrieved by the technical suitability evaluation issued by BEST, by which it rejected the bid of TATA Motors as technically non-responsive, TATA Motors approached the High Court of Judicature at Bombay in W.P.(L)No.15548 of 2022. During the pendency of that writ petition, BEST awarded the tender in favour of EVEY, with the letter of acceptance dated 20.05.2022. EVEY submitted the required performance bank guarantee on 23.05.2022. An agreement for the operation of stage carriage services was entered into between EVEY and BEST on 26.05.2022. In the impugned judgment dated 05.07.2022, the High Court took the view that the requirement for the operating range to be more than 200 Kms. in a single charge in actual conditions was unambiguous. Accordingly, the High Court upheld the disqualification of TATA Motors and rejected their claim for being considered as an eligible bidder, as they failed to comply with the technical requirements of the tender. The High Court, after holding as above, proceeded further to discuss why the bid of EVEY also should have been rejected. The High Court noted that the contention of EVEY is that Annexure Y submitted along with the technical bid was an incidental document, however, rejected such contention. The High -:50:- W.A.Nos.811 and 813 of 2023 Court while referring to Clause 16 of Schedule I held that once the final date for the submission of the bid expires, there can be no additions/corrections/submissions of documents by the bidders. The High Court held that the email dated 06.05.2022 ought not to have been entertained, and the technical bid evaluation, which was released on the same day did not depict fairness in the actions of BEST. In that view of the matter, the High Court thought fit to declare EVEY also as an unsuccessful bidder. In such circumstances, challenging the judgment of the High Court, TATA Motors, EVEY and BEST approached the Apex Court. 55. In **Tata Motors Limited [2023 SCC OnLine SC 671]** , before the Apex Court, the learned Senior Counsel for EVEY contended that, once the High Court found TATA Motors to be technically non-compliant, it ought not to have entertained a challenge to the tendering process at the instance of an unsuccessful party. In support of the said contention, the learned Senior Counsel relied on the decisions in **Raunaq International Ltd. v. I.V.R. Construction Ltd. [(1999) 1 SCC 492]** and **S.S. and Company v. Orrisa Mining Corporation Ltd. [(2008) 5 SCC 772]** . The learned Senior Counsel further contended that the writ petition was filed against the technical evaluation, whereas, -:51:- W.A.Nos.811 and 813 of 2023 the contract is at the stage of performance. Interfering with the technical evaluation at that stage would make the contract redundant and cause loss to the exchequer. Relying on the decision in **N.G. Projects Limited v. Vinod Kumar Jain [(2022) 6 SCC 127]** it was contended that the writ court should refrain itself from imposing its decision over the decision of the employer as to whether to accept the bid of a tenderer and that contract of public service should not be interfered with lightly. Moreover, the injunction or interference in the tender leads to additional costs on the exchequer and is also against the public interest. On the other hand, the learned Senior Counsel for TATA Motors submitted that the contract awarded by BEST to EVEY is _per se_ illegal. The acceptance of revised Annexure Y submitted by EVEY, after the expiry of the bid submission end date and technical bid opening date, is contrary to the tender conditions. The actions of BEST could be termed as arbitrary, discriminatory and unfair and TATA Motors has the locus to challenge the same as no legitimacy should be granted to tender processes tainted with malice. In support of the said contention, the learned Senior Counsel relied on the decisions in **Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation** -:52:- ## W.A.Nos.811 and 813 of 2023 **[(2000) 5 SCC 287]** , **Meerut Development Authority v. Association of Management Studies [(2009) 6 SCC 171]** and **Maa Binda Express Carrier v. North-East Frontier Railway [(2014) 3 SCC 760]** . The learned Solicitor General, appearing for BEST, pointed out that sub-clauses (iv) and (v) of Clause 5.1.1 of the tender document provided for mandatory eligibility conditions for being declared as a qualified bidder at the stage of technical bid. Clause 5.1.1 (v), providing for Annexure F was a mandatory condition for being qualified as a bidder at the technical bidding stage. TATA Motors deviated from the mandatory requirement while filing Annexure F, in which it is stated that, if variations are found contradicting the requirements of BEST, then such bids would be treated as non-responsive. None of the bidders including the successful bidder, i.e., EVEY, deviated from this mandatory condition. Hence, TATA Motors was declared a nonresponsive bidder at the technical stage itself. On 06.05.2022, BEST undertook the technical evaluation and took a decision to award the contract in favour of EVEY, since EVEY had quoted the lowest rates among all the bidders found eligible and responsive. The successful bidder was required to fill up Annexure Y. However, it was neither a condition precedent for being a responsive bidder -:53:- ## W.A.Nos.811 and 813 of 2023 nor a mandatory condition for awarding the contract. EVEY rectified its mistake, explaining that Annexure Y submitted by it was inadvertently placed after doing a ‘cut-and-paste’ job from the previous tender. EVEY filed a revised/fresh Annexure Y strictly in accordance with the tender. The learned Solicitor General submitted that to ask BEST to issue a fresh tender notice would be against the public interest. ## 56. In **Tata Motors Limited [2023 SCC OnLine SC 671]** the question that came up for consideration before the Apex Court was whether the High Court, after upholding the disqualification of TATA Motors Ltd. from the tender, was justified in undertaking a further exercise to ascertain whether EVEY also stood disqualified and that, BEST in its discretion may undertake a fresh tender process. Relying on the law laid down in the decision in ## **Silppi Constructions Contractors v. Union of India [(2020)** **16 SCC 489]** the Apex Court observed that the court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, the Apex Court has cautioned time and again that the courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. The Apex -:54:- ## W.A.Nos.811 and 813 of 2023 Court is normally loathing to interfere in contractual matters - unless a clear cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are ‘State’ within the meaning of Article 12 of the Constitution of India are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues, the courts should be even more reluctant because most in the Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond their domain. The courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give ‘fair play in the joints’ to the Government and public sector undertakings in matters of contract. The courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. -:55:- W.A.Nos.811 and 813 of 2023 ## 57. In **Tata Motors Limited [2023 SCC OnLine SC 671]** , on the facts of the case on hand, the Apex Court noticed that, it is not in dispute that the first and the foremost requirement of the tender was the prescribed operating range of the single-decker buses which would operate for around an average of 200 Kms in a single charge in ‘actual conditions’ with 80% State of Charge (SoC) without any interruption. The materials on record would indicate that TATA Motors in its bid deviated from this requirement and had informed BEST that it could carry the operating range in the ‘standard test conditions’, which was not in accordance with the tender conditions. The High Court has rightly observed in its impugned judgment that the bid of TATA Motors failed to comply with the said clause. TATA Motors deviated from the material and the essential term of the tender. TATA Motors alone deviated from the above condition. The Apex Court found that the High Court having once declared TATA Motors as ‘non-responsive’ and having stood disqualified from the tender process should not have entered into the fray of investigating into the decision of BEST to declare EVEY as the eligible bidder. The High Court was not exercising its writ jurisdiction in public interest. The petition before the High Court was one filed by a party trying to assert its own -:56:- W.A.Nos.811 and 813 of 2023 rights. As held in **Raunaq International Ltd. v. I.V.R. Construction Ltd. [(1999) 1 SCC 492]** the grant of judicial relief at the instance of a party that does not fulfil the requisite criteria is something which could be termed as misplaced. 58. In **Tata Motors Limited [2023 SCC OnLine SC 671]** , the Apex Court quoted with approval paragraph 27 of the decision in **Raunaq International Ltd. [(1999) 1 SCC 492]** , which reads thus; “27. In the present case, however, the relaxation was permissible under the terms of the tender. The relaxation which the Board has granted to M/s.Raunaq International Ltd. is on valid principles looking to the expertise of the tenderer and his past experience although it does not exactly tally with the prescribed criteria. What is more relevant, M/s.I.V.R. Construction Ltd. who have challenged this award of tender themselves do not fulfil the requisite criteria. They do not possess the prescribed experience qualification. Therefore, any judicial relief at the instance of a party which does not fulfil the requisite criteria seems to be misplaced. Even if the criteria can be relaxed both for M/s.Raunaq International Ltd. and M/s. I.V.R. Construction Ltd., it is clear that the offer of M/s.Raunaq International Ltd. is lower and it is on this ground that the Board has accepted the offer of M/s.Raunaq International Ltd. We fail to see how the award of tender can be stayed at the instance of a party which does not fulfil the requisite criteria itself and whose offer is higher than the offer which has -:57:- ## W.A.Nos.811 and 813 of 2023 been accepted. It is also obvious that by stopping the performance of the contract so awarded, there is a major detriment to the public because the construction of two thermal power units, each of 210 MW, is held up on account of this dispute. Shortages of power have become notorious. They also seriously affect industrial development and the resulting job opportunities for a large number of people. In the present case, there is no overwhelming public interest in stopping the project. There is no allegation whatsoever of any mala fides or collateral reasons for granting the contract to M/s.Raunaq International Ltd.” (underline supplied) ## 59. In **Tata Motors Limited [2023 SCC OnLine SC 671]** , on the facts of the case on hand, the Apex Court noticed that Annexure Y was originally required to be submitted by the ‘successful bidder’ after the evaluation of the bid and the same did not figure in the list of documents and annexures to be included in the technical submissions, as provided under Clause 5.1.1 of Schedule II of the tender. Further, the format provided for Annexure Y in the tender documents in its heading states that the ‘successful bidders shall upload a letter of undertaking on their letterhead as below’. Therefore, the Apex Court found that the restriction on the revision of documents under Clause 16 of Schedule I, which states, ‘no addition/correction, submission of documents will be allowed after the opening of technical bid’, is -:58:- W.A.Nos.811 and 813 of 2023 only limited to the documents necessary to be included in the technical bid and would not be applicable to any such document which does not form a part of the technical bid. The Apex Court also found that the High Court should have been a bit slow and circumspect in reversing the action of BEST permitting EVEY to submit a revised Annexure Y. BEST committed no error or cannot be held guilty of favoritism, etc. in allowing EVEY to submit a revised Annexure Y, as the earlier one was incorrect on account of a clerical error. This exercise itself was not sufficient to declare the entire bid offered by EVEY as unlawful or illegal. 60. In **Tata Motors Limited [2023 SCC OnLine SC 671]** the Apex Court reiterated that ordinarily, a writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer unless something very gross or palpable is pointed out. The court ordinarily should not interfere in matters relating to tender or contract. To set at naught the entire tender process at the stage when the contract is well underway, would not be in the public interest. Initiating a fresh tender process at that stage may consume a lot of time and also loss to the public exchequer to the tune of crores of rupees. The financial burden/implications on the -:59:- ## W.A.Nos.811 and 813 of 2023 public exchequer that the State may have to meet, if the court directs the issue of a fresh tender notice, should be one of the guiding factors that the court should keep in mind. This is evident from the Three-Judge Bench decision in **Association of Registration Plates v. Union of India [(2005) 1 SCC 679]** . The law relating to the award of contracts by the State and public sector corporations was reviewed in **Air India Ltd. v. Cochin** ## **International Airport Ltd. [(2000) 2 SCC 617]** and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the court must exercise its discretionary powers under Article 226 of the Constitution of India with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming -:60:- W.A.Nos.811 and 813 of 2023 public interest requires interference, the court should interfere. As held in **Jagdish Mandal v. State of Orissa [(2007) 14 SCC 517]** , while invoking the power of judicial review in matters as to tenders or award of contracts, certain special features should be borne in mind that evaluations of tenders and awarding of contracts are essentially commercial functions and principles of equity and natural justice stay at a distance in such matters. If the decision relating to the award of the contract is bona fide and is in the public interest, courts will not interfere by exercising powers of judicial review, even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be invoked to protect private interest at the cost of public interest or to decide contractual disputes. In that view of the matter, the Apex Court set aside that part of the judgment of the High Court of Judicature at Bombay by which the decision of BEST to accept the tender of EVEY was set aside and it was left to the discretion of BEST to undertake a fresh tender process. The appeals filed by EVEY and BEST were allowed to the aforesaid extent and the appeal filed by TATA Motors was dismissed. 61. The learned Senior Counsel for the appellant in the -:61:- ## W.A.Nos.811 and 813 of 2023 respective writ appeals would submit that, as held by the Apex Court in **N.G. Projects Limited [(2022) 6 SCC 127]** , the power of judicial review exercised by the High Court under Article 226 of the Constitution of India is to find out whether the decision of the State was manifestly arbitrary or unjust as laid down in **Tata Cellular v. Union of India [(1994) 6 SCC 651]** and not to act as an appellate authority over the decision of the State. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. The learned Senior Counsel pointed out that, in **N.G. Projects Limited [(2022) 6 SCC 127]** , on the facts of the case on hand, the Apex Court noticed in paragraph 22 that it is not the case of the writ petitioner that the action of the Technical Evaluation Committee was actuated by extraneous considerations or was mala fide. Therefore, on the same set of facts, different conclusions can be arrived at in a _bona fide_ manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, such a decision does not warrant interference in a grant of contract to a successful bidder. -:62:- ## W.A.Nos.811 and 813 of 2023 62. In **Popatrao Vyankatrao Patil v. State of Maharashtra [(2020) 19 SCC 241]** , another decision relied on by the learned Senior Counsel for the appellant in the respective writ appeals, the Apex Court held that even if there are disputed questions of fact which fall for consideration but if they do not require elaborate evidence to be adduced, the High Court is not precluded from entertaining a petition under Article 226 of the Constitution. In the said decision, the Apex Court has made it clear that such plenary power has to be exercised by the High Court in exceptional circumstances. The High Court would be justified in exercising such a power to the exclusion of other available remedies only when it finds that the action of the State or its instrumentality is arbitrary and unreasonable and, as such, violative of Article 14 of the Constitution of India. 63. In the instant case, the grounds raised in the respective writ petitions are mainly regarding the eligibility of the writ petitioners and the disqualification of respondents 5 and 6, with reference to ‘past experience’ provided in clause 7.17.1.2.8 of Ext.P2 general terms and conditions in Ext.P1 e-tender notification. The writ petitioners claim eligibility on the strength of Ext.P3 work completion certificate dated 17.02.2021 issued by the -:63:- ## W.A.Nos.811 and 813 of 2023 Water Works Engineer, Water Supply Department, Sangli Miraj, Kupwad Municipal Corporation. On the other hand, the 5[th] and 6[th] respondents claim eligibility on the strength of Ext.P7 certificate dated 12.05.2021 issued by the Executive Engineer, Project Division, Malappuram, which is in respect of 50 MLD capacity water treatment plant with rectangular flat bottom sludge blanket clariflocculator with plate settler, filter chamber with dual filter and nozzles and SCADA. According to the writ petitioners, though they are having the required past experience under clause 7.17.1.2.8., they were found disqualified by the Special Committee in Ext.P16 minutes and order dated 25.03.2023 in W.P.(C)No.10993 of 2023 [Ext.P18 in W.P.(C)No.10996 of 2023]. As evident from Ext.P6 clarification issued by the Water Works Engineer, Water Supply Department, Sangli Miraj Kupwad Municipal Corporation, though the technology prescribed in the tender process in respect of the work covered by Ext.P3 work completion certificate dated 17.02.2021 was modern technology with clarifiers of upward flow sludge blanket with plate settlers, tube settlers have been installed as per the instructions of the department, as per site conditions. Therefore, the appellant in both the writ appeals does not have the required experience as per clause 7.17.1.2.8 of Ext.P2 general -:64:- ## W.A.Nos.811 and 813 of 2023 terms and conditions of Ext.P1 e-tender notification. 64. In the writ petitions, in order to challenge the prequalification of respondents 5 and 6 based on Ext.P7 certificate dated 12.05.2021 issued by the Executive Engineer, Project Division, Malappuram, the writ petitioners relied on Ext.P9 reply obtained under the provisions of the Right to Information Act, wherein it is stated that no work has been undertaken under the office of the 4[th] respondent Superintending Engineer using flat bottom upward flow sludge blanket technology. However, Ext.P10 work order dated 15.10.2018 in W.P.(C)No.10993 of 2023 [Ext.P12 in W.P.(C)No.10996 of 2023] of the Superintending Engineer, PH Circle, Malappuram is in respect of 50 MLD capacity water treatment plant with rectangular flat bottom sludge blanket clariflocculator with plate settler, filter chamber with dual filter and nozzles and SCADA, awarded to one Shahul Hameed, who is the Managing Partner of the 5[th] respondent Midland Engineering and Contracting Company. It is in respect of the said work that the 5[th] respondent has been issued with Ext.P7 certificate by the Executive Engineer, Project Division, Malappuram. A combined reading of the averments in paragraphs 13 and 14 of W.P.(C)No.10993 of 2023 [paragraphs 13 and 15 of -:65:- W.A.Nos.811 and 813 of 2023 W.P.(C)No.10996 of 2023] would show that the writ petitioners are admitting the fact that the said work would satisfy the ‘past experience’ provided in clause 7.17.1.2.8 of Ext.P2 general terms and conditions of Ext.P1 e-tender notification. 65. As per clause 7.17.1.2.4 of Ext.P2 general terms and conditions of Ext.P1 e-tender notification, in the case of dissolution of the joint venture, a partner can claim experience only for that part of the scope of work for which he was responsible as a partner in the joint venture, as certified by the agreement authority. The Special Committee, in Ext.P16 minutes and order dated 25.03.2023 in W.P.(C)No.10993 of 2023 [Ext.P18 in W.P.(C)No.10996 of 2023], considered the eligibility of the 5[th] respondent Midland Engineering and Contracting Company with reference to Clauses 2 and 14 of the mutual agreement entered along with the joint venture agreement dated 07.08.2014, in respect of work order No.SE/PHC/MPM/DB2/694/2017(Vol.1) dated 15.10.2018, for the construction of 50 MLD WTP at Ponnani, which was executed between (i) K. Gowda and Company, (ii) Ramesh Engineers and Contractors, (iii) Sushanva Engineers and Builders and (iv) Shahul Hameed, on 07.08.2017, and the agreement with the Kerala Water Authority for the said work was -:66:- ## W.A.Nos.811 and 813 of 2023 executed on 17.10.2018. The Tender Committee recommendation dated 07.12.2020 and 20.12.2020 [at page No.371 of the paper book in W.A.No.811 of 2023], produced along with I.A.No.4 of 2023, would show that when that project was nearing completion, the Superintending Engineer cancelled the power of attorney since KIIFB has not agreed to effect payment to the power of attorney holder. Accordingly, payment in respect of the said work was released from KIIFB in favour of the original contractor. In Annexure 6, the Tender Committee noted that the power of attorney holder is not eligible for claiming experience for the said work and recommended giving direction to the concerned officers in this regard. The stand taken by the Kerala Water Authority in the statement dated 29.05.2023 filed in W.A.No.811 of 2023 is that the said recommendation made by the Tender Committee is in respect of the status of the power of attorney holder and the 5[th] respondent is eligible to use the experience of its Managing Partner, Shahul Hameed. The Special Committee, taking note of Clauses 2 and 14 of the said mutual agreement, came to a conclusion in Ext.P16/P18 that Ext.P7 certificate dated 12.05.2021 issued by the Executive Engineer, Kerala Water Authority, Project Division, Malappuram in favour of Shahul Hameed, who is the -:67:- W.A.Nos.811 and 813 of 2023 Managing Partner of the 5[th] respondent, can be accepted as the experience of the partnership firm. 66. As held by the Apex Court in **Silppi Constructions Contractors [(2020) 16 SCC 489]** the courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. For interference in contractual - or commercial matters, a clear cut case of arbitrariness or mala fides or bias or irrationality has to be made out. As held by the Apex Court in **Raunaq International Ltd. [(1999) 1 SCC 492]** the grant of judicial relief at the instance of a party that does not fulfil the requisite criteria is something which could be termed as misplaced. 67. In a writ petition filed by an unsuccessful bidder, the writ petitioner is trying to assert his own rights. In such a writ petition, the High Court is not exercising its writ jurisdiction in public interest. In **Tata Motors Limited [2023 SCC OnLine SC 671]** , the Apex Court quoted with approval paragraph 27 of the decision in **Raunaq International Ltd. [(1999) 1 SCC 492]** , wherein it was held that any judicial relief at the instance of a party who does not fulfil the requisite criteria, i.e., who does not possess the prescribed experience qualification, seems to be -:68:- ## W.A.Nos.811 and 813 of 2023 misplaced. In **Tata Motors Limited [2023 SCC OnLine SC 671]** the Apex Court reiterated that the writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer unless something very gross or palpable is pointed out. 68. As held by the Apex Court in **Tata Motors Limited** **[2023 SCC OnLine SC 671]** evaluations of tenders and awarding of contracts are essentially commercial functions and principles of equity and natural justice stay at a distance in such matters. If the decision relating to the award of the contract is bona fide and is in the public interest, courts will not interfere by exercising powers of judicial review, even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review exercised by the writ court is to find out whether the decision of the State was manifestly arbitrary or unjust as laid down in **Tata Cellular [(1994) 6 SCC 651]** and not to act as an appellate authority over the decision of the State. In the instant case, the grounds raised in the respective writ petitions are regarding the eligibility of the writ petitioners and the disqualification of respondents 5 and 6, with reference to ‘past experience’ provided in clause 7.17.1.2.8 of Ext.P2 general terms -:69:- ## W.A.Nos.811 and 813 of 2023 and conditions in Ext.P1 e-tender notification. In the writ petitions, the writ petitioners could not make out a case that the action of the Special Committee was actuated by extraneous considerations or mala fides. 69. During the pendency of the writ appeals, the appellant in the respective writ appeals filed various interlocutory applications invoking the provisions under Rule 154 of the Rules of the High Court of Kerala, 1971, producing therewith various additional documents. In W.A.No.811 of 2023 appellant produced Annexure A1 additional document along with I.A.No.1 of 2023, at the time of filing of the writ appeal, which was followed by production of Annexures 2 to 33 as additional documents along with I.A.Nos.2 of 2023 to 14 of 2023. Similarly, in W.A.No.813 of 2023, in addition to Annexure 1 document produced along with I.A.No.1 of 2023, the appellant produced Annexures 2 to 8 along with I.A.No.2 of 2023 and thereafter Annexures 14 to 21 as additional documents along with I.A.Nos.2 of 2023 and 6 of 2023. 70. In **Baby Joseph and others v. Kerala State Electricity Board and others [2016 (4) KHC 251]** , a Division Bench of this Court, in which one among us [Anil K. Narendran, J.] was a party, held that in an appeal filed under Section 5 of the -:70:- ## W.A.Nos.811 and 813 of 2023 Kerala High Court Act, 1958 admission of additional evidence is permissible, by invoking the provisions under Order XLI, Rule 27 of the Code of Civil Procedure, 1908. However, such power can be exercised only in cases where the appellant has established grounds necessary for such exercise, as contemplated under Order XLI Rule 27 of the Code. Therefore, the writ petition should contain the basic pleadings necessary for admission of such additional evidence and the appellant has also to satisfy the Court that, though such an issue was raised in the writ petition, notwithstanding the exercise of due diligence, such documents were not within his knowledge or could not after the exercise of due diligence, be produced before the learned Single Judge at the time when the judgment appealed against was pronounced. This is for the reason that, in an intra-court appeal filed under Section 5 of the Kerala High Court Act, the appellant cannot be permitted to expand the scope of the writ petition by raising grounds which were neither urged nor pressed into service before the learned Single Judge. In that view of the matter, the Division Bench held that, in the absence of any pleadings in the writ petition as to the technical feasibility or violation of any technical and safety standards, the appellants cannot be permitted to raise such a -:71:- ## W.A.Nos.811 and 813 of 2023 contention for the first time in the writ appeal, placing reliance on the additional documents produced along with an interlocutory application filed by them. 71. In view of the law laid down in the decision referred to supra, for admission of additional evidence in these writ appeals filed under Section 5 of the Kerala High Court Act, the appellant in the respective writ appeals has to establish the grounds necessary for such exercise, as contemplated under Order XLI, Rule 27 of the Code of Civil Procedure. The respective writ petitions should contain basic pleadings necessary for admission of such additional evidence and the appellant has to satisfy this Court that though such an issue was raised in the writ petition, notwithstanding the exercise of due diligence such documents were not within his knowledge or could not after the exercise of due diligence be produced before the learned Single Judge at the time when the judgment appealed against was pronounced. In these intra-court appeals filed under Section 5 of the Act, the appellant cannot be permitted to expand the scope of the writ petitions by raising grounds which were neither urged nor pressed into service before the learned Single Judge. Subject to the said observations, the interlocutory applications filed in both writ appeals to accept -:72:- ## W.A.Nos.811 and 813 of 2023 additional documents are allowed and those documents are marked as Annexures 1 to 33 in W.A.No.811 of 2023 and as Annexures 1 to 8 and 14 to 21 in W.A.No.813 of 2023. 72. As already noticed hereinbefore, I.A.No.10 of 2023 in W.A.No.811 of 2023 and I.A.No.5 of 2023 in W.A.No.813 of 2023 on 21.05.2023, seeking an order to implead the members of the Special Committee as additional respondents 7 to 10, no arguments were advanced by the learned Senior Counsel for the appellants. Therefore, those interlocutory applications are closed. 73. On 04.06.2023, along with I.A.No.14 of 2023, the appellant in W.A.No.811 of 2023 produced Annexure 29 recommendation of the Vigilance Committee held on 10.04.2023 on the allegations against the Superintending Engineer, Kozhikode and Superintending Engineer, Malappuram regarding prequalification in tenders SE/PHC/KKD/21/2022-23 and SE/PHC/ KKD/22/2022-23 invited by the Superintending Engineer, Kozhikode. A reading of Annexure 29 would show that the State Government forwarded a petition alleging irregularities and corruption by the Superintending Engineer, Kozhikode, and Superintending Engineer, Malappuram, regarding the above two tenders and directed Kerala Water Authority to investigate the -:73:- ## W.A.Nos.811 and 813 of 2023 same and submit a report, vide Government Letter No.D2/178/ 2022/WRD dated 27.12.2022 and 16.02.2023. Allegation No.2 in Annexure 29 deals with the 5[th] respondent Midland Engineering and Contracting Company and its Managing Partner Shahul Hameed. Allegation No.3 in Annexure 29 deals with the issuance of an experience certificate in respect of the work awarded to a joint venture in which the said Shahul Hameed was also a party. The concluding remarks in Annexure 29, which is one dated 10.04.2023, would show that a final decision in the matter has been deferred in view of the pendency of W.P.(C)No.10996 of 2023. 74. As already found, the appellant in both the writ appeals does not have the required experience as per clause 7.17.1.2.8 of Ext.P2 general terms and conditions of Ext.P1 e-tender notification, which is evident from Ext.P6 clarification issued by the Water Works Engineer, Water Supply Department, Sangli Miraj Kupwad Municipal Corporation, wherein it is stated that, though the technology prescribed in the tender process in respect of the work covered by Ext.P3 work completion certificate dated 17.02.2021 was modern technology with clarifiers of upward flow sludge blanket with plate settlers, tube settlers have been installed -:74:- W.A.Nos.811 and 813 of 2023 as per the instructions of the department, as per site conditions. In such circumstances, no interference is warranted in these writ appeals filed under Section 5 of the Kerala High Court Act, on the impugned judgment of the learned Single Judge dismissing the writ petitions filed by the appellants to assert their own rights, since any judicial relief at the instance of a party who does not fulfil the requisite criteria, i.e., who does not possess the prescribed experience qualification, is legally impermissible. On that ground, both the writ appeals fail and are accordingly dismissed. It is made clear that the dismissal of these writ appeals for the aforesaid reason or the observations contained in this judgment and that contained in the judgment of the learned Single Judge would not stand in the way of the Vigilance Committee proceeding with the matter, in accordance with law, based on a petition forwarded by the State Government, which contains allegations of corruption, or the initiation of any proceedings in accordance with law, before the appropriate forum, since in the writ petitions filed by unsuccessful bidders to assert their own rights, this Court is not exercising its writ jurisdiction in public interest, and since interference is declined on the ground that any -:75:- ## W.A.Nos.811 and 813 of 2023 judicial relief at the instance of such persons, who do not fulfil the requisite criteria, i.e., who do not possess the prescribed experience qualification, is legally impermissible. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** AV -:76:- ## W.A.Nos.811 and 813 of 2023 ## **`APPENDIX OF WA 811/2023`** ## **`PETITIONER ANNEXURES`** ``` Annexure-1TRUE COPY OF THE APPLICATION DATED 09.02.2023 SUBMITTED BY THE APPELLANT UNDER THE RIGHT TO INFORMATION ACT ALONG WITH ITS ACKNOWLEDGEMENT RECEIPT ISSUED BY THE KERALA WATER AUTHORITY ``` - **`Annexure 2 TRUE COPY OF COMMUNICATION BEARING NO. KWA/CE/NR/D3-13037/2022/JJM DATED 03.01.2023 GIVEN BY THE CHIEF ENGINEER TO MANAGING DIRECTOR OF THE KWA.`** - **`Annexure-3 TRUE COPY OF THE PROCEEDINGS OF THE TENDER COMMITTEE HELD AS EARLY AS ON 07.12.2020 AND 20.12.2020 BEARING FILE NO. 6853/AE3(WS)/2020/KWA`** - **`Annexure-4 TRUE COPY OF THE DECISION TAKEN AT THE 418TH MEETING OF THE KERALA WATER AUTHORITY HELD ON 28.01.2021`** - **`Annexure-5 TRUE COPY OF THE PROCEEDINGS OF THE MANAGING DIRECTOR, KERALA WATER AUTHORITY BEARING NO.KWA/JB/TMU/11315/2018 DATED 28.03.2019.`** - **`Annexure-6 THE ENTIRE SET OF PAPERS RECEIVED BY THE APPELLANT WITH COMMUNICATION BEARING D.O.NO. WRD010-05 TIW-INSP-01 DATED 24.06.2020 WITH ENCLOSED DOCUMENTS.`** - **`Annexure-7 TRUE COPY OF THE COMMUNICATION NO. KWA/ CE/NR/D3-13037/2022/JJM DATED 03.01.2023 ISSUED BY THE KERALA WATER AUTHORITY ALONG WITH THE BUNCH OF PAPERS AS RECEIVED.`** - **`Annexure-8 TRUE COPY OF THE PROCEEDINGS OF THE MANAGING DIRECTOR OF THE KERALA WATER AUTHORITY BEARING NO. 4438/AE(TMU)/2021/KWA DATED 26.03.2021.`** - **`Annexure-9 A TRUE COPY OF THE SAID PROCEEDINGS BEARING ORDER NO. TS/20222023/2022/11499 DATED 17.07.2022 WITH ENCLOSURES.`** -:77:- ## W.A.Nos.811 and 813 of 2023 - **`Annexure-10 TRUE COPY OF THE RELEVANT PAGES OF THE PWD MANUAL REVISED EDITION 2012.`** - **`Annexure-11 TRUE COPY OF THE RELEVANT PORTION OF THE PWD MANUAL REVISED EDITION 2012.`** - **`Annexure 12 TRUE COPY OF THE AUDITED STATEMENT OF PROFIT AND LOSS FOR THE YEAR ENDED 31.03.2022 OF THE APPELLANT.`** - **`Annexure 13 TRUE COPY OF THE AUDITED BALANCE SHEET OF THE APPELLANT AS ON 31.03.2022.`** - **`RESPONDENT ANNEXURES`** - **`Annexure R5(a) THE SUPREME COURT ORDER DATED 15.05.2023 IN S.L.P NOS. 9460-9463 FILED BY THE PETITIONER/5TH RESPONDENT`** - **`PETITIONER ANNEXURES`** - **`Annexure-14 A TRUE COPY OF THE UNDATED COMPLAINT PREFERRED BEFORE THE ADDITIONAL CHIEF SECRETARY, GOVERNMENT OF KERALA`** - **`Annexure 15 A TRUE COPY OF THE COMMUNICATION DATED 11.04.2023 ISSUED BY RESPONDENT NO. 1 IN NO. 1111/LDC (VIGILANCE)/2023/ KWA WITH ITS ENGLISH TRANSLATION`** - **`Annexure 16 A TRUE COPY OF THE REQUEST BEARING NO. REF.REC/47/2023-24 DATED 17.04.2023 ISSUED BY THE APPELLANT'S JV PARTNER TO THE PUBLIC INFORMATION OFFICER OF RESPONDENT NO. 1`** - **`Annexure 17 A TRUE COPY OF THE REPLY DATED 03.05.2023 ISSUED BY THE PUBLIC INFORMATION OFFICER IN NO. 13770/LDC (VIGILANCE)/2023/KWA & ITS ENGLISH TRANSLATED COPY`** - **`Annexure 18 "). A TRUE COPY OF THE REPLY NO.13770/LDC (VIGILANCE)/2023/KWA DATED 15.05.2023 ISSUED BY THE APPELLATE AUTHORITY OF RESPONDENT NO. 1 & ITS ENGLISH TRANSLATED COPY`** - **`Annexure 19 A TRUE COPY OF THE REQUEST DATED 06.05.2023 PLACED BEFORE THE WATER`** -:78:- W.A.Nos.811 and 813 of 2023 ``` RESOURCES DEPARTMENT, GOVERNMENT OF KERALA ``` - **`Annexure 20 A TRUE COPY OF THE COVERING LETTER DATED 17.05.2023 ISSUED BY THE GOVERNMENT IN NO. W.S.B2/97/2023-W.R.D AND ITS ENGLISH TRANSLATED COPY`** - **`Annexure 21 A TRUE COPY OF THE RECEIPT DATED 19.05.2023 EVIDENCING THE PAYMENT`** - **`Annexure-22`** - **`TRUE COPY OF THE NOTICE INVITING TENDER VOLUME-II OF THE KERALA WATER AUTHORITY.`** - **`Annexure-23`** - **`TRUE COY OF THE TECHNICAL SANCTION BEARING ORDER NO.TS/2022-2023/2022/10271 DATED 17.06.2022 ISSUED BY THE KWA.`** - **`Annexure-24`** - **`TRUE COY OF THE TECHNICAL SANCTION BEARING ORDER NO.TS/2022-2023/2022/25110 DATED 12.07.2022 ISSUED BY THE KWA`** - **`Annexure-25 TRUE COY OF THE TECHNICAL SANCTION BEARING ORDER NO.TS/2022-2023/2022/13037 DATED 16.07.2022 ISSUED BY THE KWA`** - **`Annexure-26 TRUE COY OF THE TECHNICAL SANCTION BEARING ORDER NO.TS/2022-2023/2022/25138 DATED 11.07.2022 ISSUED BY THE KWA`** - **`Annexure-27`** - **`TRUE COY OF THE TECHNICAL SANCTION BEARING ORDER NO.TS/2022-2023/2022/11499 DATED 17.07.2022 ISSUED BY THE KWA`** - **`Annexure-28 TRUE COY OF THE TECHNICAL SANCTION BEARING ORDER NO.TS/2022-2023/2022/6927 DATED 12.07.2022 ISSUED BY THE KWA`** - **`Annexure-29 A COPY OF THE SAID REPORT, RECOMMENDATION OF VIGILANCE COMMITTEE HELD ON 10.04.2023, ALONG WITH A COVERING LETTER BEARING NO.W.S-B3/97/2023-W.R.D DATED 31.05.2023 ISSUED BY THE IRRIGATION DEPARTMENT.`** - **`Annexure-30 A WORK ORDER GIVEN BY THE CORPORATION OF KOCHI IN CONNECTION WITH JUNURM/KSUDP PROJECT CIRCLE KERALA WATER AUTHORITY IN FAVOUR OF M/S. MARY MATHA CONSTRUCTION`** -:79:- ## W.A.Nos.811 and 813 of 2023 ``` COMPANY, MUVATTUPUZHA JV WITH M/S. TOMAR CONSTRUCTION USA BEARING COMMUNICATION NO. KSUDP/1253/08/COC DATED 06.11.2013 ``` ``` Annexure-31TRUE COPY OF THE WORK ORDER BEARING COMMUNICATION NO.SE/KKD/D5-9740/12 DATED 22.09.2016 ISSUED BY THE WATER AUTHORITY, ALONG WITH TYPED COPY ``` ``` Annexure-32TRUE COPY OF THE LETTER OF ACCEPTANCE EVIDENCING THE SAME, BEARING MEMO NO.406997/G/PART-II/2018/2501 DATED 06.06.2018 ISSUED BY THE CHIEF ENGINEER, LOWER NARMADA PROJECTS, ``` ``` Annexure-33TRUE COPY OF THE LETTER OF ACCEPTANCE BEARING NO.DMRC/20/III-421/2017 DATED 31.07.2017 ISSUED BY THE DIRECTOR, DELHI METRO RAIL CORPORATION LTD. ``` -:80:- W.A.Nos.811 and 813 of 2023 ## **`APPENDIX OF WA 813/2023`** ``` PETITIONER ANNEXURES ``` ``` Annexure-1TRUE COPY OF THE APPLICATION DATED 09.02.2023 SUBMITTED BY THE APPELLANT UNDER THE RIGHT TO INFORMATION ACT ALONG WITH ITS ACKNOWLEDGEMENT RECEIPT ISSUED BY THE KERALA WATER AUTHORITY ``` ``` Annexure-2TRUE COPY OF THE PROCEEDINGS OF THE MANAGING DIRECTOR, KERALA WATER AUTHORITY BEARING NO.KWA/JB/TMU/11315/2018 DATED 28.03.2019. ``` - **`Annexure-3 TRUE COPY OF THE ENTIRE SET OF PAPERS RECEIVED BY THE APPELLANT WITH COMMUNICATION BEARING D.O.NO. WRD010-05 TIW-INSP-01 DATED 24.06.2020 WITH ENCLOSED DOCUMENTS.`** - **`Annexure-4 TRUE COPY OF THE COMMUNICATION NO. KWA/ CE/NR/D3-13037/2022/JJM DATED 03.01.2023 ISSUED BY THE KERALA WATER AUTHORITY ALONG WITH THE BUNCH OF PAPERS AS RECEIVED.`** - **`Annexure-5 TRUE COPY OF THE PROCEEDINGS OF THE MANAGING DIRECTOR OF THE KERALA WATER AUTHORITY BEARING NO. 4438/AE(TMU)/2021/KWA DATED 26.03.2021.`** - **`Annexure-6 A TRUE COPY OF THE PROCEEDINGS BEARING ORDER NO. TS/2022-2023/2022/11499 DATED 17.07.2022 WITH ENCLOSURES.`** - **`Annexure-7 COPY OF THE RELEVANT PAGES OF THE PWD MANUAL , REVISED EDITION 2012.`** - **`Annexure-8 TRUE COPY OF THE RELEVANT PORTION OF THE PWD MANUAL REVISED EDITION 2012.`** - **`Annexure-14 A TRUE COPY OF THE UNDATED COMPLAINT PREFERRED BEFORE THE ADDITIONAL CHIEF SECRETARY, GOVERNMENT OF KERALA`** - **`Annexure 15 A TRUE COPY OF THE COMMUNICATION DATED 11.04.2023 ISSUED BY RESPONDENT NO. 1 IN`** -:81:- ## W.A.Nos.811 and 813 of 2023 ``` NO. 1111/LDC (VIGILANCE)/2023/KWA WITH ITS ENGLISH TRANSLATION ``` - **`Annexure 16 A TRUE COPY OF THE REQUEST BEARING NO. REF.REC/47/2023-24 DATED 17.04.2023 ISSUED BY THE APPELLANT'S JV PARTNER TO THE PUBLIC INFORMATION OFFICER OF RESPONDENT NO. 1`** ``` Annexure 17A TRUE COPY OF THE REPLY DATED 03.05.2023 ISSUED BY THE PUBLIC INFORMATION OFFICER IN NO. 13770/LDC (VIGILANCE)/2023/KWA & ITS ENGLISH TRANSLATED COPY ``` - **`Annexure 18 A TRUE COPY OF THE REPLY NO.13770/LDC(VIGILANCE)/2023/KWA DATED 15.05.2023 ISSUED BY THE APPELLATE AUTHORITY OF RESPONDENT NO. 1 & ITS ENGLISH TRANSLATED COPY`** - **`Annexure 19 A TRUE COPY OF THE REQUEST DATED 06.05.2023 PLACED BEFORE THE WATER RESOURCES DEPARTMENT, GOVERNMENT OF KERALA`** - **`Annexure 20 A TRUE COPY OF THE COVERING LETTER DATED 17.05.2023 ISSUED BY THE GOVERNMENT IN NO. W.S.B2/97/2023-W.R.D AND ITS ENGLISH TRANSLATED COPY`** - **`Annexure 21 A TRUE COPY OF THE RECEIPT DATED 19.05.2023 EVIDENCING THE PAYMENT`**