Kerala High Court
K. Bhaskaran vs State Of Kerala on 17 July, 2012
Author: T.R. Ramachandran Nair
Bench: T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
TUESDAY, THE 17TH DAY OF JULY 2012/26TH ASHADHA 1934
WP(C).No. 6074 of 2012 (H)
--------------------------
PETITIONER(S):
------------------------
K. BHASKARAN,SNEHALAYAM,
PUTHIYAVILA P.O., VELANCHIRA,
KAYAMKULAM- 690 531.
BY ADVS.SRI.M.R.ANISON
SMT.P.A.RINUSA
SMT.ANNIE JACOB
RESPONDENT(S):
--------------------------
1. STATE OF KERALA,
REP. BY ITS SECRETARY TO GOVERNMENT,
PUBLIC WORKS DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM- 695 001.
2. THE CHIEF ENGINEER,
PUBLIC WORKS DEPARTMENT (R& B),
PUBLIC HOUSE, THIRUVANANTHAPURAM- 695 033.
3. THE SUPERINTENDING ENGINEER,
PUBLIC WORKS DEPARTMENT (R& B), SOUTH CIRCLE,
THIRUVANANTHAPURAM- 695 033.
* ADDL. R4 IMPLEADED
4. AJI PETER, S/O.K.V. PATHROSE,
KURUMPALAKATTU HOUSE, NECHOOR P.O.,
PIRAVOM, ERNAKULAM, PIN-686 664.
* ADDL. R4 IS IMPLEADED AS PER ORDER DATED 17/07/2012
IN I.A. NO.6971/2012.
R1 TO R3 BY GOVT. PLEADER MR.K.C. VINCENT.
ADDL. R4 BY ADV. SRI.GEORGE POONTHOTTAM.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 05-07-2012, THE COURT ON 17/07/2012 DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 6074 of 2012 (H)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1: TRUE COPY OF BILL DT. 14/02/2012.
EXT.P2: TRUE COPY OF THE STRUCTURE AND ORGANISATION DETAILS
FURNISHED BY THE PETITIONER ALONG WITH SCHEDULE A
STIPULATED E-TENDERING DOCUMENT .
EXT.P3: TRUE COPY OF ODER ISSUED BY THE 3RD RESPONDENT
DT. 29/08/2006.
EXT/P4: TRUE COPY OF RELEVANT PAGES OF THE NOTIFICATION
DT. 04/03/2012 ISSUED BY THE 2ND RESPONDENT IN THE WEBSITE.
EXT.P5: TRUE COPY OF DEMAND DRAFT DT. 06/03/2012.
EXT.P6: TRUE COPY OF THE SOLVENCY CERTIFICATE DT. 29/02/2012.
EXT.P7: TRUE COPY OF THE CERTIFICATE SHOWING THE LAST COMPLETED
WORK DT. 05/03/2012.
EXT.P8: TRUE COPY OF THE PRELIMINARY AGREEMENT DT. 07/03/2012.
EXT.P9: TRUE COPY OF THE BILL DT. 27/04/2011.
EXT.P10: TRUE COPY OF THE FINANCIAL BID DOCUMENTS DULY FILLED
UP BY THE PETITIONER DT. 04/03/2012.
RESPONDENT'S ANNEXURES:-
ANNEXURE R3A COPY OF THE TENDER MANAGEMENT PRINTOUT.
ANNEXURE R3B COPY OF THE REPORT OF NIC.
ANNEXURE R3C COPY OF THE OFFICIAL RECORD SHOWING BOTH
FINANCIAL BIDS.
//TRUE COPY//
P.S. TO JUDGE
rs.
T.R. Ramachandran Nair, J.
- - - - - - - - - - - - - - - - - - - - - - - -
W.P.(C) No. 6074 of 2012
- - - - -- - - - - - - - - - - - - - - - - - - - -
Dated this the 17th day of July, 2012
JUDGMENT
The dispute herein is one generated from a tender notification issued by the second respondent inviting tenders for the work of providing "BM & BC in Alappuzha Town Roads-Aryad-Mandrolight Road and Thathampaly Road". The tender had to be submitted by E-tendering method. The petitioner's grievance as projected in the writ petition, is that the petitioner could not transmit the pre qualification tender before the appointed time, as the official website displayed 'ERROR' continuously. The writ petition is filed mainly seeking for a direction to accept the pre qualification documents.
2. Pursuant to the interim order passed, the petitioner submitted pre qualification bid. Now two bidders are left in the field, the petitioner as well as the additional fourth respondent. Various arguments have been raised on both sides. I shall refer to the essential facts which may have to be stated for considering the arguments.
3. The tender notification was displayed in the official website of the second respondent on 4.3.2012. The last date and time for receipt of WPC.6074/2012 - 2- on-line bids has been fixed as 7.3.2012 upto 4 p.m. This is clear from Ext.P4 and the date and time of opening of the tender is shown as 12.3.2012 at 12 p.m.
4. The petitioner's case is that the he collected all the required documents like Demand Draft for Rs.26,000/-, Fixed Deposit of Rs.50,000/- towards Earnest Money Deposit, solvency certificate for Rs.7 crores, certificate showing the last completed work of the petitioner and the preliminary agreement to be executed and they have been produced as Exts.P5 to P8. To show that the petitioner owns all the machineries for executing the work, Ext.P9 bills have been produced. Ext.P10 is the true copy of the financial bid document downloaded from the website and duly filled up by the petitioner on 4.3.2012.
5. In para 5 of the writ petition, it is averred that the petitioner made ready all the required documents in the evening of 6.3.2012. By hiring a professional in IT field, the petitioner could forward the financial bid papers by lunch time of 7.3.2012. It is further stated that before transmitting the 166 pages of pre qualification tender documents, from 3 p.m. onwards the official website displayed error continuously. Expressing difficulty in forwarding the tender documents by E-tendering process prior to 12.3.2012, the writ petition has been filed.
WPC.6074/2012 - 3-
6. I shall extract the prayers in the writ petition, since it is contended by the learned counsel appearing for the additional fourth respondent that the scope of the writ petition cannot be widened. The prayers are thus shown below:
"(a) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to extend the time for e-
tendering the pre-qualification and financial bid documents of the work notified in Ext.P4 for a further period of one week from 7.3.2012;
(b) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to accept and consider the full pre-qualification document produced pursuant to Ext.P4 notification for executing the contract work of "PROVIDING BM & BC IN ALAPPUZHA TOWN ROADS-ARYAD-
MONDROLIGHT ROAD AND THATHAMPALLY ROAD" by extending the time for opening the tender for a minimum period of one week from 12.3.2012;
(c) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to consider the full pre- qualification document to be submitted by the petitioner pursuant to Ext.P4 notification and not to reject the petitioner's pre qualification and financial bid documents only on the ground that, his full pre-qualification tender documents could not reach the 3rd respondent's office before 4 p.m. on 7.3.2012; and
(d) to pass such other and further orders as are deemed just and WPC.6074/2012 - 4- necessary in the facts and circumstances of the case."
5. This Court has passed various interim orders. When the writ petition came up for admission on 12.3.2012, after hearing the learned Government Pleader, the following interim order was passed:
"Admit. Govt. Pleader takes notice for the respondents. Govt. Pleader submits that today, only the pre-qualification bids are being opened and only if the pre-qualification bids are opened and the bidder is found qualified, the financial bid would be opened.
In the above circumstances, I direct the respondents not to open the financial bids until further orders. Post on 16.3.2012. In the meanwhile, the respondents shall file their counter affidavit."
Thus, this Court directed the respondents not to open the financial bids until further orders. The next order is dated 21.3.2012 which is extracted below:
"The respondents shall permit the petitioner to submit pre- qualification bid as well provisionally, subject to the result of the writ petition, which shall be opened and the petitioner's qualification shall be considered. The petitioner shall submit pre- qualification bid within two days and the respondents shall process the same provisionally and report to this Court whether the petitioner is pre-qualified, within another week. Post after 10 days."
By the above order, the petitioner was allowed to submit pre-qualification bid provisionally and the respondents were directed to process the same WPC.6074/2012 - 5- provisionally and to report whether the petitioner is pre-qualified.
6. On the next posting date, i.e. 2.4.2012, the following interim order has been passed, after noticing that the petitioner has been found pre- qualified:
"It is submitted that the petitioner has been found pre-qualified for the tender subject to the result of the writ petition. Another person also has been pre-qualified. Both have submitted financial bids as well. The respondents are directed to open financial bids of the petitioner and the other pre-qualified person and report to this Court. Post after vacation."
7. I.A. No.6971/2012 is filed by the additional fourth respondent to implead him and he has raised various contentions in the affidavit in support of the impleading petition as well as in the counter affidavit. He is the one tenderer other than the petitioner, in the field. It is mainly pointed out that the contention raised by the petitioner that there was error in the official website is not correct. It is also the contention of the additional fourth respondent that making use of the interim order passed by this Court on 21.3.2012, while submitting the pre qualification tender, the petitioner has produced a financial bid, varying the rates quoted in Ext.P10, after knowing the details of the financial bid of the additional fourth respondent. The rate quoted in Ext.P10 is 13% above the estimate rate, whereas in the WPC.6074/2012 - 6- financial bid submitted later, the same is 9.9% above the estimate rate and the rate quoted by the additional fourth respondent is 11%. It is the contention of the additional fourth respondent that what was permitted by this Court in the interim order dated 21.3.2012 is only to submit pre qualification bid and taking advantage of the same, a fresh financial bid has been submitted, varying from Ext.P10 after fully being aware about the rates quoted by the additional fourth respondent.
8. On 2.4.2012, the financial bids of additional fourth respondent and the petitioner were directed to be opened by this Court as per the interim order. But when the e-mail of the third respondent was opened, only the bid submitted by the additional fourth respondent was available and it was opened. As the financial bid of the petitioner was not available, the third respondent refused to consider the new financial bid submitted by the petitioner manually. But later, when contempt proceedings were initiated as C.O.(C) No.680/2012, the financial bid of the petitioner was also opened on 22.5.2012. This fact is clear from the affidavit filed in support of I.A. No.7034/2012, by the writ petitioner.
9. The petitioner has filed reply affidavits. He denies the contention by the additional fourth respondent that the financial bid submitted by the petitioner afresh is after coming to know of the rate quoted by the additional WPC.6074/2012 - 7- fourth respondent. The official website will show that the financial bid submitted by the petitioner was not received through electronic system till 7.3.2012 and only the manually submitted financial bid of the petitioner dated 22.3.2012 has been received and opened in terms of the interim order passed by this Court. The same was done by the department only after the contempt proceedings were initiated. One of the contentions raised by the petitioner in the reply affidavit is that the additional fourth respondent is not having any required experience.
10. A separate reply affidavit has been filed to the counter affidavit filed by the third respondent. An application for amendment has also been filed as I.A. No.8013/2012 seeking to quash Ext.P11, whereby the additional fourth respondent was found pre-qualified, which is opposed by the learned counsel for the additional fourth respondent and the above application has not been allowed.
11. I shall refer to the stand taken by the third respondent in the statement as well as in the additional statement. It is averred in para 2 of the statement filed on 16.3.2012 that there was only one bid and it was submitted by Shri Aji Peter (additional fourth respondent) and the same has been submitted at 3.50 p.m. on 7.3.2012. Ext.R3(a) is the copy of the tender management printout. The pre qualification/technical bids were WPC.6074/2012 - 8- opened on 12.3.2012 at 12 noon. The last date for submission of the bid was at 4 p.m. on 7.3.2012.
12. It is further stated in the statement that after the receipt of the writ petition, the matter was enquired with the IT wing of the Public Works Department and National Informatic Centre and Ext.R3(b) is the copy of the report which states that the system was serving the public and was accessible on the whole day of 7th March, 2012. The stand taken is that the petitioner has not submitted any pre qualification/technical bids and therefore he cannot be considered for determining the pre qualification competency. The non submission of the tender online is only due to the mistake of the petitioner.
13. In the additional statement dated 5.6.2012 the contention taken is that this Court has never given any direction to accept the financial bid physically, in the order dated 21.3.2012. After the interim order dated 2.4.2012, the financial bid submitted through E-tendering process was opened. The petitioner insisted for opening the cover which he claims as the financial bid produced by him physically. The same was not opened by the third respondent in the light of the averments in the writ petition that he has submitted financial bids through E-tendering successfully. After filing of C.O.(C) No.680/2012, it was opened and it was found that the petitioner WPC.6074/2012 - 9- 's bid was 9.9.% above the estimate rate. Ext.P10 shows 13% above the estimate rate. It is contended that the petitioner is trying to make unlawful benefit now which cannot be accepted.
14. Heard parties.
15. Learned Senior Counsel for the petitioner submitted that now that both the tenderers have been found pre qualified and the financial bids have been opened, this Court need only direct the official respondents to process the tenders and finalise the proceedings. This plea was opposed by the learned counsel for the additional fourth respondent and the learned Government Pleader by pointing out that unless and until the petitioner is found as eligible to be granted any relief in the writ petition, no such direction can be granted.
16. Learned Senior Counsel for the petitioners Smt.V.P. Seemanthini submitted that the submission of the financial bids physically by the petitioner is perfectly justified. It is pointed out that the petitioner's case that he could not submit the pre qualification bid before 4 p.m. on 7.3.2012, is well founded. Accepting this plea, this Court directed, by interim order dated 21.3.2012, to submit the pre qualification bid provisionally. It is submitted that in the document Annexure R3(c) which is the official record, containing the relevant details, as against the name of WPC.6074/2012 - 10- the petitioner, it is recorded that "no financial bid received online E- tendering system" and the subsequent endorsement will show that "manually submitted financial bid" has been opened. It is further submitted that the plea raised by the additional fourth respondent has no merit. The petitioner had submitted the pre qualification document and financial bid document on 22.3.2012 and the financial bid of the additional fourth respondent was opened only on 11.4.2012 at 12 noon and therefore the allegation that the petitioner submitted the fresh financial bid after knowing the rate quoted by the additional fourth respondent, is not correct. Learned Senior Counsel further submitted that the production of Ext.P10 before this Court along with the writ petition will not deprive the petitioner the right to submit fresh financial bid manually, and at a different rate shown therein.
17. Shri George Poonthottam, learned counsel for the additional fourth respondent submitted that the petitioner should be pinned down to the averments in the writ petition. The petitioner approached this Court by making the averment that he could not transmit the E-tender of the pre qualification bid by online system. The said plea could not be established by the petitioner and has been successfully been countered by the statements filed by the third respondent wherein evidence is available to show that the system had no 'error'. Going by Ext.R3(b) it can be seen that WPC.6074/2012 - 11- the plea raised by the writ petitioner is not correct. It is submitted that in the interim order dated 21.3.2012 this Court did not permit the petitioner to submit a financial bid manually. It is evident that the submission of such a financial bid goes against the contention of the petitioner in the writ petition itself. Even the pre qualification bid was also allowed to be submitted provisionally, subject to the result of the writ petition. Therefore, unless and until this Court is satisfied that there was an error in the system, the pre qualification bid also cannot be accepted finally. It is submitted that the rate quoted by the additional fourth respondent was wellknown in all circles and that has prompted the petitioner to submit a revised financial bid manually and the said method cannot be therefore accepted.
18. Shri K.C. Vincent, learned Government Pleader submitted that Ext.R3(a) which is the tender management print out, has recorded the time at which the additional fourth respondent submitted the bid and the time recorded is 3.50 p.m. on 7.3.2012, whereas the petitioner's allegation in para 5 of the writ petition is that from 3 p.m. onwards the official website displayed error continuously which is totally unsupportable due to the above fact. My attention was invited to Ext.R3(b) report of the National Informatic Centre, wherein it is clearly recorded that the system was serving the public and was accessible on the whole day of 7th March, 2012. Learned WPC.6074/2012 - 12- Government Pleader also submitted that the interim order passed by this Court was only one permitting the petitioner to submit the pre qualification bid provisionally, but the petitioner, along with the pre qualification bid, submitted another cover containing the financial bid. It was not opened initially as it was found on the bid opening day, that the petitioner had not submitted, as averred in the writ petition, the financial bid through E- tendering process. It is submitted that the petitioner is not entitled for any relief in the writ petition, especially since after producing Ext.P10 financial bid showing 13% above the estimate rate and seeking for an opportunity to submit the pre qualification bid through the intervention of this Court, he cannot be allowed to go back on the same. Therefore, learned Government Pleader submitted that the only valid pre qualification tender submitted is that of the additional fourth respondent.
19. I shall now consider the various aspects in some detail. The writ petition was filed on 9.3.2012 and it came up for admission on 12.3.2012 on which day the first interim order was passed, as already noticed. Some of the averments in the writ petition are important to consider the arguments of both parties. The petitioner has averred in para 5 of the writ petition that "with a genuine desire to effect e-tendering of the contract work on 7.3.2012 itself, the petitioner made ready all the required documents WPC.6074/2012 - 13- stipulated in Ext.P4 notification on 6.3.2012 evening itself. The remaining averments in the said paragraph are extracted below:
"By hiring a professional in IT field, petitioner could forward the Financial Bid papers by lunch time of 7.3.2012. But before transmitting the 166 pages of pre qualification tender documents from 3 p.m. onwards, the official website displayed "ERROR"
continuously."
Thus, it is evident that the case of the petitioner is that the petitioner has forwarded the financial bid papers by lunch time of 7.3.2012 and the error, according to the petitioner, was from 3 p.m. onwards. Ext.P10 is described as the true copy of the financial bid document downloaded from the website and duly filled up by the petitioner on 4.3.2012. In para 6 it is averred that after 4 p.m. on 7.3.2012 the official website stopped accepting any tender documents and the averment in para 7 is that the petitioner is also not in a position to forward the documents by e-tendering process prior to 12.3.2012, since the website is not accepting any documents.
20. In ground B of the writ petition, it is stated as follows:
"Only because of the error in the official system occurred from 3 p.m. on 7.3.2012 onwards, petitioner's pre qualification documents in full could not reach the third respondent's office before 4 p.m. on 7.3.2012."
WPC.6074/2012 - 14- In Ground C also, the above submission is repeated. In Ground D it is stated as follows:
"But it so happened that official website did not accept any tender documents from 4 p.m. on 7.3.2012. Therefore, the petitioner could not forward the entire pre qualification documents to the third respondent's office before 4 p.m. on 7.3.2012."
Finally, it is stated in Ground 'D' that "in the peculiar circumstances explained above, it is necessary to direct the respondents to permit the petitioner to participate in the tender process for executing the work notified as per Ext.P4, by accepting his entire pre qualification documents." Prayer Nos.(b) and (c) are also significant, wherein a direction is sought to the respondents to accept and consider the full "pre qualification document"
and not to reject the petitioner's pre qualification and financial bid documents only on the ground that his full pre qualification tender documents could not reach the third respondent's office before 4 p.m. on 7.3.2012.
21. Therefore, evidently, the petitioner's case is that the financial bid could be submitted by lunch time of 7.3.2012, but the pre qualification bid alone could not be submitted since there was an error in the official website from 3 p.m. and the prayers are only to accept the pre qualification bid and WPC.6074/2012 - 15- not any financial bid. Therefore, it is a case where the petitioner was projecting that part of the bid documents could be submitted by him within time and the remaining part could not be submitted because of an error in the system.
22. The interim order granted by this Court on 21.3.2012 permitted the petitioner only to submit the pre qualification bid provisionally and not any financial bid. Significantly, even on that day, the petitioner had not sought for any permission to submit the financial bid. Therefore, after noticing that both have submitted financial bid, the further direction was issued on 2.4.2012 to open the financial bids. Significantly, in the interim order dated 12.3.2012, this Court had directed the respondents not to open "the financial bids" until further orders.
23. The first question is whether there was any error in the system. As rightly pointed out by the learned Government Pleader, Ext.R3(a) will disprove the plea of the petitioner, going by the time of submission of the bid by the additional fourth respondent, which is 3.50 p.m. on 7.3.2012, whereas the petitioner's case is that by 3 p.m. onwards the system was not accepting any tender. Ext.R3(b) is the report by the National Informatic Centre, regarding the availability of e-tendering in the website of the Government of Kerala on 7.3.2012 and the crucial sentence in the report is WPC.6074/2012 - 16- the following: "From the Log details of the application, the system was serving the public and was accessible on the whole day of 07th March 2012." This also goes a long way in disproving the plea raised by the petitioner. Therefore, evidently there was no error in the system.
24. Strong reliance is placed by the learned Senior Counsel for the petitioner, on Ext.R3(c) to show that the plea of the petitioner is correct. Ext.R3(c) is the true copy of the official records showing both the financial bids. As already noticed, this was based on the e-tendering process and the endorsement as on 12.3.2012 is that "no financial bid received on-line E- tendering system" as regards the petitioner", whereas against the name of the additional fourth respondent, it is shown as 11% above the estimate rate. Finally, the details are there with regard to the manually submitted financial bid by the petitioner wherein the rate quoted is 9.9.% above the estimate rate. Learned Senior Counsel therefore submitted that the system has not accepted the financial bid submitted by the petitioner by the e-tendering process. Actually it will only defeat the case of the petitioner since it can be seen that the same goes against the averments of the petitioner that the financial bid was submitted by lunch time on 7.3.2012. It is clear that the petitioner had not submitted the financial bid through e-tendering system, otherwise it would have been definitely been accepted and recorded.
WPC.6074/2012 - 17- Therefore Ext.R3(c) will not support the plea of the petitioner.
25. After the interim order dated 21.3.2012 the petitioner had filed I.A. No. 5105/2012 on 30.3.2012 seeking for a direction to the respondents to open the financial bid at the earliest. In para 2 of the affidavit, reference has been made to the interim order dated 21.3.2012 and in para 3 the averment made is that "as per the above interim order, the petitioner submitted his pre qualification tender and also the financial bid." Significantly, as already noticed, the petitioner was never permitted by this Court to submit another financial bid. Only in the reply affidavit in para 5, the petitioner has come up with a case that the official records produced by the third respondent reflect that the financial bid of the petitioner was not received on 7.3.2012 and only the manually submitted financial bid of the petitioner dated 22.3.2012 is received. I have already found that Ext.R3(c) cannot come to the rescue of the petitioner. In the reply affidavit to the counter affidavit of the third respondent also, in para 1(b) the petitioner has taken the stand, after referring the interim order dated 21.3.2012, that "in compliance with the above interim order, the petitioner submitted pre- technical qualification tender documents as well as Financial Bid documents in the 3rd respondent's office at 2.20 .m. on 22.3.2012 itself." Obviously, as already noticed, no permission was sought from this Court to submit a fresh WPC.6074/2012 - 18- financial bid. It is explained in the said para that Technical Bid documents and Financial Bid documents were put in two separate covers and both covers were submitted by putting it in another envelope.
26. It has thus been established that the pre qualification tender documents and financial bid documents have been submitted by the petitioner only manually, whereas the tender notification required the intending tenderers to submit the same through e-tendering process alone. When a particular method is provided in the tender notice, the tenders submitted by that process alone can be accepted. The examination by this Court is required only to find out whether the plea raised by the petitioner that there was an error in the system from 3 p.m. on 7.3.2012 is correct or not. The evidence already discussed will disprove the above plea of the petitioner. Therefore, this Court will not be justified in directing the respondents to accept the pre qualification tender as well as financial bid submitted by the petitioner manually which was after the cut off date, viz. 7.3.2012. The interim order granted by this Court on 21.3.2012 clearly directed that submission of pre qualification bid will be provisional and subject to the result of the writ petition. Therefore, the petitioner cannot take advantage of it and now seek for a direction to the respondents to complete the process by considering the pre qualification bid and financial WPC.6074/2012 - 19- bid submitted by the petitioner manually.
27. One of the arguments raised by the learned counsel for the additional fourth respondent and the learned Government Pleader is that the petitioner should be pinned down to Ext.P10 with regard to the rate quoted. The stand taken by the petitioner with regard to this aspect in the reply affidavit to the counter affidavit filed by the additional fourth respondent, is significant. Therein, it is averred as follows in para 7:
"The contention taken by the respondent in para 6, based on Ext.P10 is not at all sustainable. The official documents referred above shows that the only financial bid of the petitioner available with the department is his manually submitted financial bid dated 22.03.2012 quoting 9.9% above the estimate rate. Therefore there is no question of directing the respondents to consider Ext.P10. That apart, the rate shown in Ext.P10 need not be the exact rate, since petitioner has got every right to keep secrecy to his rate, especially when such papers are being presented in a court of law open to all, at a time when the tender processing is being carried on by the department."
Therefore, the plea now raised is that the rate quoted in Ext.P10 need not be the exact rate and the petitioner had to maintain secrecy. Read along with the averments in paragraphs 4 and 5 of the writ petition, it can be seen that the petitioner cannot be allowed to resile from the same and to adopt a WPC.6074/2012 - 20- different stand in the reply affidavit. Ext.P10 has been produced as the true copy of the financial bid document duly filled up by the petitioner and in para 5 and as already noticed, it was also submitted that the petitioner could forward the financial bid by lunch time of 7.3.2012. Thereafter during the various stages in the writ petition also, there was no plea by the petitioner to allow him to submit a fresh financial bid document. Therefore, the plea raised by the learned Senior Counsel for the petitioner that the rate quoted as 9.9% is well justified, cannot be accepted. The explanation attempted in the reply affidavit, as above noticed, cannot therefore be accepted.
28. As rightly pointed out by the learned counsel for the additional respondent and learned Government Pleader, the change in the stand taken by the petitioner cannot be appreciated, since the averments in the writ petition alone has led to the passing of the interim order dated 21.3.2012 confining to the submission of pre qualification bid alone. It is well settled that the jurisdiction exercised by this Court under Article 226 of the Constitution of India, is discretionary. It is also a well settled position that a party cannot resile from the admission made in the pleadings, normally. Therefore, when a party approaches this Court seeking for various reliefs, the pleadings in the writ petition are significant. As already noticed, the prayers made by the petitioner in the writ petition are also significant to WPC.6074/2012 - 21- consider whether the change in stand made by the petitioner could be accepted. The first prayer was one seeking to extend the time for e-tendering the pre qualification and financial bid documents which is not relevant now. Prayers (b) and ) are significant, wherein the petitioner only seeks for a consideration of the full pre qualification documents and the further prayer is to direct the respondents not to reject the petitioner's pre qualification and financial bid documents. Therefore, it is in that context this Court by the interim order, permitted the petitioner to provisionally submit the pre qualification bid. Of course, by the interim order dated 2.4.2012 the opening of the financial bids was also directed, but unless the petitioner is able to successfully establish the case pleaded for getting final reliefs in the writ petition, the interim orders will not help the pleas of the petitioner.
29. Therefore, it is clear that both pre qualification as well as financial bids of the petitioner are not liable to be accepted and I hold so.
30. In the application for amendment, the petitioner is seeking to challenge Ext.P11, the minutes of the Chief Engineers Committee held on 19.3.2012 evaluating the pre qualification bid of the additional fourth respondent. The contention raised appears to be is that the additional fourth respondent has not satisfied the eligibility criteria. The application for amendment has not been allowed. The scope of the writ petition is not WPC.6074/2012 - 22- one with respect to the respective claims between the petitioner and the additional fourth respondent on the tenders submitted and its merits. But it is made clear that the official respondents can further verify, if they are proceeding to finalise the remaining steps, about the said aspect.
The writ petition is hence dismissed, subject to the above observations. No costs.
(T.R. Ramachandran Nair, Judge.) kav/