Kerala High Court
K.Geogy George vs State Of Kerala
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
FRIDAY,THE 1ST DAY OF APRIL 2016/12TH CHAITHRA, 1938
WP(C).No. 6726 of 2016 (M)
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PETITIONER(S):
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K.GEOGY GEORGE, AGED 53 YEARS,
PWD CONTRACTOR, KOTTUAPPILLY HOUSE, KUNNUMPURAM,
KALPATHY P.O., PALAKKAD - 678 003.
BY ADVS.SRI.K.L.VARGHESE (SR.)
SMT.SANTHA VARGHESE
SRI.RAHUL VARGHESE
SRI.RANJITH VARGHESE
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
PUBLIC WORKS DEPARTMENT,GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. THE CHIEF ENGINEER,
PWD ROAD & BRIDGES, THIRUVANANTHAPURAM - 695 001.
3. THE SUPERINTENDING ENGINEER,
PUBLIC WORKS DEPARTMENT (ROADS & BRIDGES),
(NORTH CIRCLE), KOZHIKODE - 675 001.
4. M/S. P.G.CONSTRUCTIONS,
PULLANIPARAMBIL, MEZHATHUR P.O., THIRTHALA,
PALAKKAD - 687001.
R1-3 BY GOVERNMENT PLEADER SRI.GIKKU JACOB
R4 BY ADVS. SRI.K.BABU THOMAS
SMT.MARYKUTTY BABU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-04-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PJ
WP(C).No. 6726 of 2016 (M)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 - TRUE COPY OF E-GOVERNMENT PROCUREMENT (E-GP) NOTICE INVITING
TENDER DT. 06.1.2016 ISSUED BY THE 3RD RESPONDENT.
P2 - TRUE COPY OF EXPERIENCE CERTIFICATE DT. 22.1.2013.
P3 - TRUE COPY OF THE FACING SHEET OF PWD FORM NO.83 NIT AND RELEVANT
PAGE 25, CONTAINING CLAUSE 43.
P4 - TRUE COPY OF LETTER DT. 11.2.2016 ALONG WITH MINUTES OF THE CHIEF
ENGINEER'S COMMITTEE.
P5 - TRUE COPY OF PHOTOGRAPH OF ABRIDGE OBTAINED FROM THE WEBSITE.
P6 - TRUE COPY OF PHOTOGRAPH OF ABRIDGE OBTAINED FROM THE WEBSITE.
P7 - TRUE COPY OF PHOTOGRAPH OF ABRIDGE OBTAINED FROM THE WEBSITE.
P8 - TRUE COPY OF PHOTOGRAPH OF AWEIR OBTAINED FROM THE WEBSITE.
P9 - TRUE COPY OF PHOTOGRAPH OF AWEIR OBTAINED FROM THE WEBSITE.
P10 - TRUE COPY OF DIAGRAM DEPCTING COMPONENTS OF ATYPICAL BRIDGE.
P11(A) COPY OF PHOTOGRAPH SHOWING THAT THE BRIDGE WAS INAUGURATED
ON 13/8/12 BY THE HONOURABLE PWD MINISTER IN THE PRESENCE OF THE
LOCAL MLAS
P11(B) COPY OF PHOTOGRAPH SHOWING THE COMPLETED BRIDGE
P11(C) COPY OF PHOTOGRAPH SHOWING THE SALIENT FEATURES OF THE BRIDGE
WORK ENGROSSED ON THE MARBLE PLAQUE UNVEILED BY THE MINISTER
P11(D) COPY OF PHOTOGRAPH SHOWING THE NAME OF THE ENGINEERS IN
CHARGE
P12 COPY OF LETTER DT.4/10/12 ISSUED BY THE SUPERINTENDING ENGINEER
TO THE EXECUTIVE ENGINEER.
RESPONDENT(S)' EXHIBITS
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R4(A) COPY OF LETTER ISSUED UNDER TRI ACT, INTIMATING NON-AVAILABILITY OF
EXT.P2 COMPLETION CERTIFICATE
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WP(C).No. 6726 of 2016 (M)
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R4(B) COPY OF LETTER OF THE AEE TO THE EXECUTIVE ENGINEER, INTIMATING
THAT THE WORK IN EXT.P2 ISNOT COMPLETED & LETTER DATED 8/3/16
COMPLETION CERTIFICAT & CLOSURE AGREEMENT NOT AVAILABLE
R4(C) COPY OF RLEVANT PORTION OF THE BID DOCUMENTS FOR THE WORK
DOWNLOADED BY THE R4
R4(D) COPY OF THE RELEVANT PORTION QUOTED PERCENTAGE OF (-) 1.11% OF
ESTIMATE RATE PAC OF RS.7,67,536/- AND DOWNLOADED AFTER 15/2/16
R4(E) COPY OF COMPETION CERTIFICATE OF SINGLE WORK OF RCC WEIR
ACRESS CHITTOORPUZHA AT KUMPANPARAKADAVU VALUED RS.3,63,00,000/-
4841 CUM OF RCC & 62.083 MT STEEL REINFORCEMENT
R4(F) COPY OF COMPLETION CERTIFICATE FOR LAC-ADS OF VENGASSERY
BRIDGE VALUED RS.98,57,570/-
R4(G) COPY OF COMPLETION CERTIFICATE FOR CHECK DAM AT CH.3/200 NEAR
OLD PARALI BRIDGE ACROSS BHJARATHAPUZHA AT MUTTIKADAVU,
MANAKARA LENGTH OF 200.76M VALUED RS.1,21,65,24/-
R4(H) COPY OF THE DESIGN OF THE BRIDGE INTENDED IN EXT.P1/EXT.R4(C) WITH 2
SPANS OF 25.32M/EACH HAVING 2 PIERS AND 2 ABUTMENTS
R4(I) COPY OF CERTIFICATE FOR THE RCC STORAGE WEIR INVOLVING 4841
CU.M.OF RCC AND 62.083 MT. OF STEEL REINFORCEMENT
R4(J) PHOTOGRAPHS OF THE RCC WEIR CONSTRUCTED BY RESPONDENT NO.4
ACROSS CHITTOORPUZHA VALUED RS.3,63,00,000/- HAVING LENGTH OF 96M
WITH AVERAGE DEPTH OF 3 M FOR FOUNDATION AND 2.8 M FOR WEIR BODY
R4(K) COPY OF THE RELEVANT PORTION OF AGREEMENT DATED 20/1/11
EXECUTED BHY THE PETITIONER FOR THE WORK IN EXT.P2 ERTIFICATE
WITH 923.77 CUM OF RCC FOR THE BRIDGE PROPER
/ TRUE COPY /
P.S. TO JUDGE
PJ
A.MUHAMED MUSTAQUE, J.
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W.P.(C).No.6726/2016
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Dated this the 1st Day of April, 2016
J U D G M E N T
The writ petition is filed challenging award of a contract to the fourth respondent.
2. The subject matter of the award is "reconstruction of Athipotta Bridge across Gayathri river at Km.2/000 of Kazhani- Pazhambalakkode Road in Palakkad District". The petitioner as well as the 4th respondent were found eligible for the award of the work. Considering the lowest bid quoted by the 4th respondent, the work has been awarded to them.
3. According to the petitioner, the tender submitted by the 4th respondent is not in conformity with the tender conditions and W.P.(C).No.6726/2016 -:2:- therefore, the said tender has to be rejected. The eligibility condition in the tender is that the tenderer must have successfully completed at least one similar work costing more than 40% of the estimate Probable Amount of Contract during the last five years.
4. According to the petitioner, the 4th respondent had only executed the work of weir and not the similar work as referred in the tender notification.
5. As seen from the exhibits relied on by the parties, the 4th respondent had carried out and completed construction work of RCC Storage weir across Chitturpuzha at Kumpanparakadavu on 16/2/2013 as per the agreement dated 08/08/2012, as evident from Ext.R4(e). Therefore, the question is whether this would be sufficient or not.
W.P.(C).No.6726/2016 -:3:-
6. The second respondent has filed a counter affidavit in this matter. In para.5 of the counter, it is stated as follows:
"5. In response to the tender call 2 Nos. of tenders were received including that of the petitioner contractor Sri.Geogy George.K and from the 4th respondent M/s.P.G.Constructions. Both the bidders have produced sufficient documents to qualify their tender. Hence both are pre qualified. The 4th respondent produced experience certificate of various works including one major work "DIDSSMT-WSS to Chittur-Thathamangalam Municipality-Construction, commissioning and maintenance of storage weir across Chitturpuzha at Kumbanparakadavu" issued by Superintending Engineer, PH Circle, Kerala Water Authority, Palakkad. The value of work done of that work is Rs.363.00 lakhs, which is more than 40% of estimate PAC of tendered work."
It is further stated in para.8 as follows:
"8. The working environment for both the cases of weir and bridge are same, as both are to be constructed across water bodies. Both constructions involved diverting/preventing flow of water in the working area, heavy shuttering concreting and other W.P.(C).No.6726/2016 -:4:- allied works, though the physical appearance and the purpose are not same."
7. The expert view is that the weir and the bridge are one and the same and both are constructed across water bodies. This Court cannot sit upon the wisdom of the experts to differ that the expert view is erroneous unless otherwise materials are placed before this Court to arrive at a conclusion that the decision was flawed. The technical committee comprised of experts, after evaluating the nature of the work, found that the work relating to weir and bridge will have to be treated as the same. In such situation, this Court cannot upset such findings. Therefore, there is no merit in the writ petition. Accordingly, the same is dismissed.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ms