Kerala High Court
Infra Elevators India (P) Ltd vs The State Of Kerala on 14 December, 2011
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
THURSDAY, THE 31ST DAY OF OCTOBER 2013/9TH KARTHIKA, 1935
WP(C).No. 13697 of 2013 (J)
----------------------------
PETITIONER(S):
--------------------------
INFRA ELEVATORS INDIA (P) LTD.,
35/2223, OPP.ST.JOHN BAPTIST CHURCH
PALLI PRADAKSHINA ROAD, PALLI NADA, PALARIVATTOM
KOCHI - 682 025,
REPRESENTED BY ITS MANAGING DIRECTOR.
BY ADVS.SRI.T.K.VIPINDAS
SMT.P.K.PRIYA
SRI.K.V.SREE VINAYAKAN
SRI.K.M.HASHIR
SRI.K.M.MUHAMMED HUSSAIN
RESPONDENT(S):
----------------------------
1. THE STATE OF KERALA,
REPRESENTED BY SECRETARY,
PUBLIC WORKS DEPARTMENT.
2. THE SUPERINTENDING ENGINEER,
PWD ELECTRICAL DIVISION,
OFFICE OF THE CHIEF ENGINEER,
BUILDINGS & LOCAL WORKS,
THIRUVANANTHAPURAM - 33.
BY GOVERNMENT PLEADER SMT. K.A. SANJEETHA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 31-10-2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Kss
WP(C).No. 13697 of 2013 (J)
-----------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-------------------------------------
EXHIBIT P1. TRUE COPY OF THE GOVERNMENT PURCHASE ENLISTMENT
CERTIFICATE DATED 14.12.2011 ISSUED BY NATIONAL SMALL INDUSTRIES
CORPORATION LTD.
EXHIBIT P2. TRUE COPY OF THE COMPLETION CERTIFICATE DATED 28.01.2013
ISSUED BY THE SUPERINTENDING ENGINEER, PORT BLAIR CENTRAL CIRCLE,
ANDAMAN PUBLIC WORKS DEPARTMENT.
EXHIBIT P3. TRUE COPY OF THE CERTIFICATE ISSUED BY KERALA TOURISM
DEVELOPMENT CORPORATION LTD. DATED 17.05.2012.
EXHIBIT P4. TRUE COPY OF THE CERTIFICATE DATED NIL ISSUED BY KERALA
SPORTS COUNCIL.
EXHIBIT P5. TRUE COPY OF THE CERTIFICATE ISSUED BY KERALA STATE
ELECTRICITY BOARD DATED 30.07.2009.
EXHIBIT P6. TRUE COPY OF THE COMPLETION CERTIFICATE DATED 20.12.2011
ISSUED BY SUPERINTENDING ENGINEER & DEPUTY CHIEF ENGINEER, PWD
(MECHANICAL)) IN RESPECT OF LIFT INSTALLED IN KERALA LEGISLATIVE
COMPLEX.
EXHIBIT P7. TRUE COPY OF THE ENDER NOTICE NO.EL-E/12 DATED 22.03.2013.
EXHIBIT P8. TRUE COPY OF THE POSTAL RECEIPT OF EVIDENCING THE
DISPATCH OF THE TENDER DOCUMENTS.
EXHIBIT P9. TRUE COPY OF THE TENDER NOTICE NO.EL-2-258E/13 DATED
19.04.2013.
EXHIBIT P10. TRUE COPY OF THE TENDER NOTICE NO.EL2-258E/13 DATED
20.05.2013.
EXHIBIT P11. TRUE COPY OF THE KERALA LIFTS AND ESCALATORS RULES,
2012 PUBLISHED IN THE KERALA GAZETTE.
EXHIBIT P12. TRUE COPY OF THE GUIDELINES ISSUED FOR REGISTRATION
FOR AUTHORIZED MANUFACTURERS OF LIFTS/ESCALATORS BY THE
ELECTRICAL INSPECTORATE.
EXHIBIT P13. TRUE COPY OF THE TENDER NOTIFICATION NO.EL2/259E/13 DTD.
20/09/2013.
EXHIBIT P14. TRUE COPY OF THE TENDER NOTIFICATION NO.EL2/259E/13 DTD.
25/09/2013.
Kss .2/-
..2....
WPC.NO.13697/2013(J)
RESPONDENT(S)' EXHIBITS:
-----------------------------------------
R2(a): COPY OF THE 7 AGREEMENTS EXECUTED BETWEEN KONE ELEVATORS
AND SUPERINTENDING ENGINEER TAKEN FROM AGREMENT REGISTER.
R2(b): COPY OF SELECTION NOTICES WITH THIS CONDITION ISSUED TO KONE
ELEVATORS AND OMEGA ELEVATORS.
R2(c): COPY OF THE LIST OF APPROVED MAKE OF MATERIALS CONTAINING
THE NAME OF DIFFERENT LIFT MANUFACTURES PRIOR TO 2008 FOR
THE COURT COMPLEX MUVATTUPUZHA, ADVOCATE GENERAL OFFICE,
ERNAKULAM.
R2(d): COPY OF TENDER NOTICE DTD. 06/12/2012.
/TRUE COPY/
P.A.TO JUDGE
Kss
P.R. RAMACHANDRA MENON, J.
========================
W.P.(C). No. 13697 of 2013
--------------------------------------------
Dated this the 31st day of October, 2013
JUDGMENT
Ext.P7, P9 and P10 tenders notified by the respondents for supply of lifts in various Governmental institutions are under challenge in this writ petition.
2. The petitioner is a manufacturer and supplier of 'lifts and elevators' and such other items, who is running the Institution in the name and style as 'Infra Elevators India (P) Ltd. It is submitted that the petitioner has supplied and installed passenger lifts for various Government and Quasi-Governmental institutions as borne by Exts. P2 to P6.
3. While so, the 2nd respondent issued Exts. P7, P9 and P10 notifications inviting tenders to be submitted in respect of some 'named products', which according to the petitioner is only to extend undue advantage to the dealers/manufactures of the particular type of lifts mentioned in Exts. P7, P9 and P10. In spite of the proven credentials, the petitioner was simply left out, who in turn has approached this Court by filing this writ petition for immediate intervention.
W.P.C. No. 13697 of 2013 -2-
4. The second respondent has filed a counter affidavit seeking to justify the stand and the course pursued by the said respondent, also producing relevant documents as Exts. R2(a) to R2 (d). A reply affidavit has been filed by the petitioner producing copy of the Kerala Lifts and Escalators Rules, 2012 published in the Kerala Gazette as Ext.P11 and also Ext.P12, a copy of the Guidelines issued by the Electrical Inspectorate for registration of authorized manufacturers of Lifts/Escalators. The learned counsel submits that the above rules have come into existence with effect from 25.1.2013 and all the tender notifications i.e., Ext.P7 dated 22.3.2013, Ext.P9 dated 19.4.2013 and Ext.P10 dated 20.05.2013, have been issued much after the commencement of said Rule vide Ext.P11. As per the said Rules, the 'authorised manufacturer' as defined under Section 2 (1) (a) means the manufacturer of lift/escalator approved by the Department of Electrical Inspectorate. With regard to the approval to be given by the Electrical Inspectorate, Ext.P12 has been produced, which is the requirement to be satisfied for having registration by the Inspectorate. It is stated that the petitioner has already obtained registration of the W.P.C. No. 13697 of 2013 -3- Electrical Inspectorate and none of the Companies/Institutions mentioned in Exts. P7, P9 and P10 has obtained the registration as aforesaid. It is without any regard to the specific Rules as above, that the 2nd respondent has finalized Exts. P7, P9 and P10 tender notifications; which is only to extend unlawful gains to the parties of choice and hence the challenge.
5. The learned Government Pleader submits that the proclaimed credentials of the petitioner are not true and correct and that, quite a lot of complaints are there with regard to the products and service supplied by the petitioner. It is also pointed out that, the 2nd respondent wanted to have only the quality products and it was accordingly, that the products manufactured by the particular Companies, as given in Ext.P7, P9 and P10, were insisted to be supplied.
6. When the writ petition came up for consideration before this Court on 12.6.2013, the following interim order was passed:
"The learned Government Pleader submits that altogether five companies by name "MITSUBISHI, FUJI, SCHINDLER, KONE & OMEGA" have been shortlisted for the purpose of tender. But, only the names of three companies do appear in Ext.P7 tender notification. The W.P.C. No. 13697 of 2013 -4- respondents are directed to file a detailed statement/affidavit as the case may be to sustain Ext.P7 in the said circumstances. Post after one week. Status quo shall be maintained till that date."
As borne by the said order, it is very much evident that, quality of the products manufactured by the 'five' different companies was found as acceptable to the respondents and it was accordingly, that the said 'five' companies were shortlisted for the purpose of tender. But, only the names of 'three' Companies do appear in the relevant notifications issued as per Exts. P7, P9 and P10. In Ext. P7 and P9 one Company's name is left out, while Ext.P10 contains the name of another Company, after leaving out one of the names in Exts. P7 and P9. Since there is no dispute with regard to the fact that Exts.P7, P9 and P10 were issued after the commencement of Ext.P11 Rules, it was very much obligatory for the respondents to have adhered to the Rules and norms stipulated by the Rule making authority. To say the least, the course pursued by the 2nd respondent by way of Exts. P7, P9 and P10 is per se wrong and illegal in all respects being contrary to Ext.P11 Rules.
6. In the above circumstance, Exts. P7, P9 and P10 are set W.P.C. No. 13697 of 2013 -5- aside. The 2nd respondent is directed to re-notify the tenders, strictly in conformity with Ext.P11 Rules, inviting the tenders by way of proper Technical/Commercial bids separately, assessing the technical credentials of the parties concerned and to proceed with the tender accordingly. The proceedings as above shall be finalized as expeditiously as possible.
The writ petition is allowed to the said extent. No cost.
P.R. RAMACHANDRA MENON, JUDGE.
kp/-