Kerala High Court
Gcvd Infratech Pvt. Ltd vs Union Of India on 13 December, 2021
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 13TH DAY OF DECEMBER 2021 / 22ND AGRAHAYANA,
1943
WP(C) NO. 11131 OF 2021
PETITIONER/S:
GCVD INFRATECH PVT. LTD.,
THROUGH ITS MANAGING DIRECTOR, MR. MUKESHGARG,
OFFICE AT FLAT NO.311, TIRUPATI HEIGHTS
APARTMENT BEHIND 3RD MILE, STONE RESTAURANT
ROORKEE ROAD, MEERUT-250001, UTTAR PRADESH.
BY ADVS. P.M.JOSHI
SMT.SIJI K.PAUL
RESPONDENT/S:
1 UNION OF INDIA, THROUGH DEFENCE SECRETARY,
MINISTER OF DEFENCE, NORTH BLOCK, NEW DELHI,
PIN-110011.
2 ENGINEER-IN-CHIEF,MILITARY ENGINEER SERVICES,
KASHMIRI HOUSE, NEW DELHI-110011.
3 CHIEF ENGINEERS (NW),MILITARY ENGINEER SERVICES,
NAVA BASE P.O., KOCHI-682004.
4 CHIEF ENGINEER, SOUTHERN COMMAND, PUNE, PUNE-
411001.
BY ADVS.
SHRI.P.VIJAYAKUMAR, ASG OF INDIA
MANU S., ASG OF INDIA
OTHER PRESENT:
SRI.MANU.S., ASGI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 13.12.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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W.P.(C). No. 11131 of 2021
P.V.KUNHIKRISHNAN, J.
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W.P.(C) No. 11131 of 2021
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Dated this the 13th day of December, 2021
JUDGMENT
The above writ petition is filed with following prayers:
"(i) issue a writ of mandamus or order or direction or declaration or appropriate writ declaring that the condition mentioned in para 4 of the letter dated 15.02 .2021 issued by the Respondent No.3 ''that the tender for the subject work is being re-invited and you and your related firms (if any)shall not be eligible to quote for the the subject tender in 2nd or subsequent call in terms of condition 19 of IAFW 2249 of General Condition of Contracts)'' is un-contractual and against all the principles of natural justice, hence Ext.P9 is invalid.
(ii) Issue a writ of certiorari or direction or orders or appropriate writ quashing Exhibit-P 18 technical summary report dated 29.04.2021 issued by the Respondent No.3 by which the Respondent No.3 -3- W.P.(C). No. 11131 of 2021 reject the technical bid of the Petitioner Company without given any reason.
(iii) Issue a writ of mandamus or order or direction or appropriate writ directing the Respondent No.3 to open the technical bid as well as financial bid of the Petitioner Company in the tender ID No.2021-MES-
426295-1 for work Provn of Concrete Spliway with Hoisting Winch and Working Platform for FIC at ND Minicoy along with other bids.
(iv) Issue a writ of certiorari or appropriate writ or direction quashing Exhibit P19 as 3rd respondent has no right to issue the same
(v) Issue any other order that this Hon'ble Court may deem fit and proper to grant in the facts and circumstances."
2. When this writ petition came up for consideration, the learned Assistant Solicitor General of India submitted that the authority now decided to re-tender the work. In the light of the same, the main prayer in the writ petition is infructuous.
-4- W.P.(C). No. 11131 of 2021Then the learned counsel for the petitioner submitted that as per Clause 11 of Annexure R3 (b), there is a prohibition to the petitioner in participating in the re-tender and he is challenging that also in the writ petition. Admittedly, the re-tender proceeding is not started. According to the petitioner, he has got a very good case and he can convince the authority that Clause 11 of Annexure R3(b) is not applicable to the petitioner.
If that is the case, the petitioner can file representation before the authority concerned and there can be a direction to the authority concerned to consider the same, before re-tender proceeding is started.
Therefore, this writ petition is disposed of in the following manner:
1. The petitioner is free to file a representation before the 3rd respondent narrating his grievance that Clause 11 of Annexure R3(b) is not applicable to the petitioner and he is also entitled to participate in the -5- W.P.(C). No. 11131 of 2021 re-tender proceedings, within two weeks from the date of receipt of a copy of this judgments.
2. Once, such a representation is received, the 3 rd respondent will consider the same and pass orders in it, after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate within two weeks from the date of receipt of the representation.
Sd/-
P.V.KUNHIKRISHNAN JUDGE das -6- W.P.(C). No. 11131 of 2021 APPENDIX OF WP(C) 11131/2021 PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE RELEVANT PAGES OF THE TENDER FORM IN CA NO.
CE(NW)/KOCHI/LKD/39 OF 2020-21 DATED 22/05/2019.
EXHIBIT P2 THE TRUE COPY OF THAT ACCEPTANCE LETTER DATED 27/11/2020.
EXHIBIT P3 THE TRUE COPY OF OM (OFFICE MEMORANDUM) NO.F.9/4/2020-PPD DATED 12/11/2020.
EXHIBIT P4 THE TRUE COPY OF THE REPLY LETTER DATED 02/12/2020 SENT BY THE PETITIONER TO 3RD RESPONDENT. EXHIBIT P5 THE TRUE COPY OF THE LETTER DATED 17/12/2020 ISSUED FROM THE OFFICE OF 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P6 THE TRUE COPY OF THE LETTER DATED 08/01/2021 SENT BY THE PETITIONER TO 3RD RESPONDENT.
EXHIBIT P7 THE TRUE COPY OF THE LETTER DATED 11/01/2021 SENT BY 3RD RESPONDENT TO THE PETITIONER.
EXHIBIT P8 THE TRUE COPY OF THE LETTER DATED 30/01/2021 SENT BY THE PETITIONER TO 3RD RESPONDENT.
EXHIBIT P9 THE TRUE COPY OF THE LETTER DATED 15/02/2021 SENT BY 3RD RESPONDENT TO THE PETITIONER.
EXHIBIT P10 THE TRUE COPY OF THE LETTER DATED 28/02/2021 SENT BY THE PETITIONER TO 2ND RESPONDENT.
EXHIBIT P11 THE TRUE COPY OF THE LETTER DATED 11/03/2021 SENT BY THE PETITIONER TO 2ND RESPONDENT.
-7- W.P.(C). No. 11131 of 2021EXHIBIT P12 THE TRUE COPY OF THE RELEVANT PAGES OF MILITARY ENGINEER SERVICES (MES) GENERAL CONDITIONS OF CONTRACTS. EXHIBIT P13 THE TRUE COPY OF THE LETTER DATED 08/03/2021.
EXHIBIT P14 THE TRUE COPY OF THE LETTER DATED 25/03/2021 SENT BY THE PETITIONER TO GARRISON ENGINEER (NAVY) LAKSHADWEEP. EXHIBIT P15 THE TRUE COPY OF THE DD BEARING NO.926652 DATED 25/03/2021.
EXHIBIT P16 THE TRUE COPY OF THE RELEVANT PAGES OF THE TENDER FORM DATED 27/02/2021. EXHIBIT P17 THE TRUE COPY OF THE LETTER DATED 30/03/2021 SENT BY THE PETITIONER TO 3RD RESPONDENT.
EXHIBIT P18 THE TRUE COPY OF THE REJECTION LETTER DATED 29/04/2021.
EXHIBIT P19 THE TRUE COPY OF THE REJECTION OF THE APPEAL RECEIVED AS E-MAIL ON 04/05/2021.
EXHIBIT P20 THE TRUE COPY OF THE LETTER DATED 22.10.2020 ISSUED BY THE 3RD RESPONDENT EXHIBIT P19 THE TRUE COPY OF THE 4TH EDITION OF LAW RELATING TO BUILDING AND ENGINEERING CONTRACT IN INDIA PAGES 4 TO 6 EXHIBIT P20 TRUE COPY OF LETTER DATED 22.10.2020 ISSUED BY THE 3RD RESPONDENT EXHIBIT P21 TRUE COPY OF THE 4TH EDITION OF LAW RELATING TO BUILDING AND ENGINEERING CONTRACT IN INDIA PAGES 4 TO 6 RESPONDENT'S EXHIBITS ANNEXURE R3(A) LETTER NO.890885/27/E8C DATED 27 NOV 2020 OF CHIEF ENGINEER (NW) KOHCI -8- W.P.(C). No. 11131 of 2021 ANNEXURE R3(B) TRUE COPY OF NIT SERIAL PAGE NO.9 IN LIEU OF IAFW-2162 (REVISED) ANNEXURE R3(C) TRUE COPY OF CESC, PUNE BY DECISION DATED 12TH MAY 2021 ANNEXURE R3(D) TRUE COPY OF GUIDELINES DATED 16.2.2021 ISSUED BY JOINT DG (CONTRACTS) MILITARY ENGINEERING SERVICE ANNEXURE R3(E) TRUE COPY OF RELEVANT PAGES OF THE CONTRACT CONDITIONS ANNEXURE R3(F) TRUE COPY OF CONDITION 19 OF GENERAL CONDITIONS OF CONTRACT ANNEXURE R3(G) TRUE COPY OF LETTER DATED 11 NOV 2020 ANNEXURE R3(H) TRUE COPY OF CONTRACT CONDITIONS ON SERIAL PAGE NO.06 OF CONTRACT AGREEMENT ANNEXURE R3(I) TRUE COPY OF THE REPLY GIVEN TO CONTRACTOR VIDE OFFICE LETTER NO.890885/137/ER DATED 07 MAY 2021 ANNEXURE R3(J) TRUE COPY OF CE(NW) KOCHI LETTER NO.890885/135/E8 DATED 04 MAY 21 ANNEXURE R3(K) TRUE COPY OF RELEVANT PORTION OF GENERAL CONDITIONS OF CONTRACT (CONDITION 54 OF IAFW-2249)