Kerala High Court
Sisira Automobiles vs State Of Kerala on 17 March, 2022
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
WP(C) NO. 22545 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 17TH DAY OF MARCH 2022 / 26TH PHALGUNA, 1943
WP(C) NO. 22545 OF 2021
PETITIONER/S:
SISIRA AUTOMOBILES
NEELESWARAM P.O., KALADY, ANKAMALY, ERNAKULAM
DISTRICT
(REP.BY ITS PROPRIETOR S. SURA, THOPPILPARAMBIL
HOUSE, NEELESWARAM P.O., KALADY, ANKAMALY
BY ADV P.DEEPAK
RESPONDENT/S:
1 STATE OF KERALA
REP.BY SECRETARY TO GOVERNMENT, DEPARTMENT OF
IRRIGATION, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001
2 THE SUPERINTENDING ENGINEER AND DEPUTY CHIEF
ENGINEER (MECHANICAL)
OFFICE OF THE CHIEF ENGINEER, PWD, IRRIGATION
DEPARTMENT, THIRUVANANTHAPURAM 695 033
3 M/S. OJES AUTOMOBILES
A.M. ROAD, NELLIKUZHI POST, KOTHAMANGALAM,
ERNAKULAM 686 691
BY ADVS.
THOMAS J.ANAKKALLUNKAL
SR.GOVERNMENT PLEADER, SRI.K.V.MANOJ KUMAR
ARUN CHANDRAN, R3
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 17.03.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 22545 OF 2021 2
P.V.KUNHIKRISHNAN, J
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W.P.(C.) No. 22545 of 2021
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Dated this the 17th day of March, 2022
JUDGMENT
The above writ petition is filed with following prayers :
"1. Issue a writ in the nature of mandamus or such other writ or direction interdicting the 1st and 2nd respondents from approving Ext.P4 decision of the Technical Committee accepting the financial bid of the 3rd respondent and awarding the contract to the 3rd respondent pursuant to the e-tender invited vide Exhibit P2 tender notice.
2. Issue a writ in the nature of mandamus or such other writ or direction interdicting the 1 st and 2nd respondents to re-tender the work captioned as 'Bus body building of mobile quality control laboratory with interior, exterior, paint, air conditioning, generator, electrical wiring and fitment of Department supplied missionaries for PWD, Kerala' deleting Condition No.3 of Exhibit P3 special conditions to the extent it insists that at least one among the custom mobile laboratories must be related to civil engineering material testing.
3. Issue such other writ order or direction as this Hon'ble Court may deem fit and appropriate in the facts and circumstances of the case." [SIC]
2. As per Annexure R2(a), the tenders were invited for single cover system from commercial vehicle body builders having CIRT/ARAI certificate from Transport Authority for bus body building of mobile quality control laboratory with interior, exterior, paint, air conditioning, generator, electrical WP(C) NO. 22545 OF 2021 3 wiring and fitment of Department supplied missionaries for PWD, Kerala. The petitioner submitted tender. The petitioner became L1. But the tender of the petitioner was rejected as evident by Annexure R2(b). The reason for rejection of the petitioner's e-tender is that the petitioner does not satisfy condition No.3 in Annexure R2(c) special conditions. Since only one more tender is available as per the original E-tender notice after rejecting the tender of the petitioner, the authorities re-tendered as per Ext.P2 Re-E-tender. The petitioner again participated in the Re-E-tender proceedings also. The petitioner's bid was again rejected for the same reason mentioned in Annexure R2(b). Ext.P4 is the decision. Aggrieved by the same, this writ petition is filed.
3. Heard the learned counsel for the petitioner and the learned Government Pleader. I also heard the learned counsel appearing for the 3rd respondent.
4. This is a case in which the petitioner participated in the first E-tender proceedings and the tender was rejected as evident by Annexure R2(b). Annexure R2(c) is the special conditions. It will be better to extract condition No.3 in WP(C) NO. 22545 OF 2021 4 Annexure.R2 (c).
"3. Bidders should have built at least three custom mobile laboratories atleast one of which is related to civil engineering material testing. Should enclose work orders/acceptance certificates of the three mobile medical units along with the technical bid."
5. The petitioner's tender was rejected because they fails to satisfy the condition No.3 in Annexure.R2(c). Annexure R2(b) is the rejection order. Thereafter, again Re-E-tender proceedings were initiated in which the petitioner again participated. In the Re-E-tender also, the special conditions are same. The petitioner's bid was again rejected because the petitioner fails to satisfy condition No.3 in Annexure.R2(c). Now, the petitioner challenge condition No.3 in Annexure.R2(c) and also Ext.P4, by which the petitioner's tender is rejected. Admittedly, the petitioner participated in the original tender proceedings and he invited an order by which his tender is dismissed for not satisfying condition No.3 in Annexure R2(c). Thereafter, again with full knowledge that there is such a condition, he participated in the Re-E-tender proceedings. In that Re-E-tender proceedings also, the petitioner's tender was rejected for the same reason that is condition No.3 in Annexure R2(c).
WP(C) NO. 22545 OF 2021 5
6. In such circumstances, according to me, the petitioner cannot challenge the order passed by the respondents after participating in the first E-tender proceedings and also in the Re-E-tender proceedings in which Ext.P3 special condition is applicable. The petitioner invited Annexure R2(b) order and thereafter challenging the 2 nd order by which the tender is rejected in the Re-E-tender proceedings for the same reason mentioned in Annexure R2(b) order. According to me, the challenge against those orders will not stand.
Therefore, this writ petition fails and the same is dismissed.
SD/-
P.V.KUNHIKRISHNAN JUDGE SKS WP(C) NO. 22545 OF 2021 6 APPENDIX OF WP(C) 22545/2021 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE DESCRIPTION OF WORK APPENDED TO THE NOTICE INVITING TENDER Exhibit P2 A TRUE COPY OF THE RE-E-TENDER NUMBER CE(MECH) T/051/2021 DATED 16/8/2021 Exhibit P3 TRUE COPY OF THE SPECIAL CONDITIONS ATTACHED TO THE NOTICE INVITING TENDER Exhibit P4 A TRUE COPY OF MINUTES OF THE TECHNICAL COMMITTEE DATED 7/9/2021 Exhibit P5 A TRUE COPY OF THE REPRESENTATION DATED 31/8/2021 ADDRESSED TO THE HON'BLE MINISTER FOR IRRIGATION Exhibit P6 A TRUE COPY OF THE TENDER STATUS AS ON 18/10/2021 Exhibit P7 A TRUE COPY OF THE PROCEEDINGS OF THE SECOND RESPONDENT DATED 03/02/2022.
Exhibit P7 A TRUE COPY OF THE PROCEEDINGS OF THE SECOND RESPONDENT DATED 3/2/2022 RESPONDENT'S EXHIBITS ANNEXURE R2(A) TRUE COPY OF RE-TENDER NOTICE ALONG WITH ANNEXURE I ANNEXURE R2(B) TRUE COPY OF MINUTES OF THE MEETING DATED 3.8.2021 ANNEXURE R2(C) TRUE COPY OF SPECIAL CONDITIONS ATTACHED TO NIT ANNEXURE R2(D) TRUE COPY OF GO(P) NO.324/2015/FIN DATED 30.7.2015 ANNEXURE.R2(E) TRUE COPY OF TECHNICAL EVALUATION UPLOADED IN E- TENDER WEBSITE ANNEXURE.R2(F) TRUE COPY OF FINANCIAL EVALUATION SUBMITTED