In a writ petition challenging the disqualification of a contractor due to insufficient experience certificates for a tender, the court held that the works undertaken did not match the required building works definition and dismissed the petition.
The writ petition was dismissed as there was no merit in the challenge to the disqualification decision.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
WEDNESDAY, THE 3RD DAY OF FEBRUARY 2016/14TH MAGHA, 1937
WP(C).No. 38870 of 2015 (G)
PETITIONER(S):
BINOY, AGED 39 YEARS, S/O.RAJENDRANATHAN, T.C. 29/1489, MAYOORA, M.K.K. ROAD, M.G.R.A. - 104, PETTAH, THIRUVANANTHAPURAM - 24.
BY ADV. SRI.AYYAPPAN SANKAR.
RESPONDENT(S):
1. EXECUTIVE ENGINEER (CIVIL), BHARATH SANCHAR NIGAM LIMITED (BSNL), CIVIL DIVISION NO.1, BSNL CIVIL CIRCLE, MANACAUD, THIRUVANANTHAPURAM - 695 009.
2. M/S. HEATHER CONSTRUCTIONS, REPRESENTED BY ITS MANAGING PARTNER, T.C. 9/1226, SASTHAMANGALAM, THIRUVANANTHAPURAM - 695 010.
3. M/S. CRESCENT CONSTRUCTIONS, REPRESENTED BY ITS MANAGING PARTNER, T.C. 42/C - 3146, POOJAPPURA P.O., THIRUVANANTHAPURAM - 695 012.
R1 BY ADVD. SRI.PREMJIT NAGENDRAN, SC, SRI.MATHEWS K.PHILIP, SC. R2 BY ADVS. SRI.NAGARAJ NARAYANAN, SRI.SAIJO HASSAN, SRI.BENOJ C AUGUSTIN, SRI.PRATHAP PILLAI, SRI.VISHNU BHUVANENDRAN.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-02-2016, THE COURT ON 03/02/2016 DELIVERED THE FOLLOWING:
rs.
WP(C).No. 38870 of 2015 (G)
APPENDIX
PETITIONER'S EXHIBITS:-
| EXT.P-1: | TRUE PHOTOCOPY OF CONTRACTOR'S REGISTRATION CARD VALID UPTO 31.03.2016 ISSUED BY SUPERINTENDING ENGINEER, BUILDINGS AND LOCAL WORKS, P.W.D. |
|---|---|
| EXT.P-2: | TRUE PHOTOCOPY OF CERTIFICATE DATED 20.11.2015 ISSUED BY THE EXECUTIVE ENGINEER, KANNUR CENTRAL DIVISION CPWD, KANNUR CENTRAL DIVISION, KANNUR. |
| EXT.P-3: | TRUE PHOTOCOPY OF CERTIFICATE DATED 30.03.2011, ISSUED BY THE SUPERINTENDING ENGINEER, PWD BUILDINGS AND LOCAL WORKS, SOUTH CIRCLE, THIRUVANANTHAPURAM. |
| EXT.P-4: | TRUE PHOTOCOPY OF CERTIFICATE DATED 03.12.2015 ISSUED BY THE EXECUTIVE ENGINEER, KANNUR CENTRAL DIVISION, CPWD, KANNUR. |
| EXT.P-5: | TRUE PHOTOCOPY OF THE NOTICE INVITING TENDER DATED 27.11.2015 PUBLISHED BY IST RESPONDENT ALONG WITH COPIES OF RELEVANT PAGES PUBLISHED IN THE WEBSITE FOR SUBMISSION OF E-TENDER. |
| EXT.P-6: | TRUE PHOTOCOPY OF EMAIL COMMUNICATION ISSUED BY RESPONDENT ON 16.12.2015 THE DATE OF OPENING THE BID, AT 7.43 P.M INTIMATING THAT PETITIONER'S BID IS DISQUALIFIED. |
| EXT.P-7: | TRUE PHOTOCOPY OF SCHEDULE OF COST QUOTED BY 2ND RESPONDENT WHICH IS PUBLISHED IN THE WEBSITE OF FIRST RESPONDENT. |
| EXT.P-8: | TRUE PHOTOCOPY OF SCHEDULE OF COST QUOTED BY 3RD RESPONDENT WHICH IS PUBLISHED IN THE WEBSITE OF FIRST RESPONDENT. |
RESPONDENT'S EXHIBITS:-
| EXT.R1A | COPY OF THE RULES FOR ENLISTMENT OF CONTRACTORS 2009 IN BSNL. |
|---|---|
| EXT.R1B | COPY OF THE CENTRAL PUBLIC WORKS DEPARTMENT |
| ENLISTMENT RULES 2005, DATED 18/01/2013. |
//TRUE COPY//
P.S. TO JUDGE
rs.
A.MUHAMED MUSTAQUE, J.
W.P.(C).No.38870/2015
Dated this the 3rd Day of February, 2016
J U D G M E N T
The issue in this writ petition is revolved around experience
certificates produced by the writ petitioner to satisfy the eligibility
conditions of experience in undertaking similar building works.
Sanchar Nigam Limited (BSNL) for the work of construction of new
Medical College in General Hospital compound at
Thiruvananthapuram. The work includes, construction of Academic
Block-I. S.W: Flooring, finishing and Aluminium works.
not an enlisted contractor by the BSNL, he has to produce
W.P.(C).No.38870/2015
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certificates/testimonials to prove that he has done similar building
works. The tenderer has to produce three of such certificates, if the
cost of the work is not less than the amount equal to 197.64 lakhs or;
two such certificates, if the work undertaken by the tenderer is costing not less than the amount equal to 247.04 lakhs or; one such certificate, if the work undertaken by the tenderer is costing not less
than the amount equal to 395.27 lakhs.
produced Exts.P2 to P4 to show that he has undertaken simiar building works. BSNL found that the certificates produced by the petitioner are not satisfactory. Accordingly, the petitioner was disqualified. The petitioner challenges this decision in this writ
petition.
W.P.(C).No.38870/2015
-:3:-
Court passed the following order:
“The petitioner produced three certificates, Exts.P2 to P4 showing that he has undertaken building works in past as required in the notification. It appears that the authorities are not satisfied with the certificates produced by the petitioner. Admittedly, the certificates are uploaded through online process. Therefore, it may not be possible to explain all the nature of the work undertaken by him. The petitioner submits that he can explain the nature of the work referred in Exts.P2 to P4 before the first respondent.
This Court is of the view that the petitioner as well as the second respondent shall appear before the first respondent on 16.1.2016 at 11 a.m. and first respondent shall take appropriate decision on the certificates produced by the petitioner before 19.1.2016. It is made clear that first respondent shall only verify the work undertaken by the petitioner covered by Exts.P2 to P4.”
6. Pursuant to the above direction, the Executive Engineer
(C) of the BSNL considered the experience certificates produced by
W.P.(C).No.38870/2015
-:4:-
the petitioner and after giving an opportunity to the petitioner as
well as the second respondent, passed an elaborate order on 18/01/2016. In the order, he referred to Exts.P2 to P4 and observed
as follows:
6.i. In respect of Ext.P2 experience certificate, it is observed as
follows:
“On scrutiny of the extract of agreement it is observed that the scope of work is construction of Temporary shed with G.I profile sheet roofing supported on built-up steel tubular trusses. Foundation is of Random rubble and dressed laterite stone masonry. There are no items of work for wall, water supply and sanitary items.”
6.ii. In respect of the work in relation to Ext.P3, it is observed
as follows:
“On scrutiny of the schedule of quantities of work produced by the petitioner it is observed that scope of
W.P.(C).No.38870/2015
-:5:-
work executed are only additions/alterations/repairs to an existing building, sanitary and water supply installations, compound wall, road work etc. It is neither RCC framed constructions or load bearing construction to qualify as building work as per clause 7.7 of BSNL Enlistment Rule 2009.”
6.iii. In respect of Ext.P4, it is observed as follows:
“On scrutiny of the extract of agreement it is observed that the scope of work is construction of 22 nos. Temporary shed (BARRACK) of size 12mX5m with open varandah. Foundation is of random rubble masonry. Side walls are of dressed laterite masonry. Roofing is with G.I Profile sheet supported on steel trusses. In addition to these 22 sheds, there are 3 Nos. independent toilet blocks. In toilet blocks bathing area is without rood and water closet area are covered with RCC slope roof. Underground sump, septic tank and approach road are also included in the work.”
that the experience certificates produced by the petitioner are not
sufficient for the “building works” as required in the eligibility criteria
W.P.(C).No.38870/2015
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in the notice inviting tender. The above findings were made after
adverting to the definitions of the “building work” under the CPWD
rules for enlistment and also under the BSNL rules for enlistment.
The factual findings as above would clearly indicate that the works undertaken by the petitioner, as reflected in Exts.P2 to P4, are not similar to the “work” referred in the notice inviting tender. I do not find any infirmity with the above decision of the BSNL. Even though the petitioner was given an opportunity, he could not establish that the “works” undertaken by him would match the “works” referred in the notice inviting tender. Therefore, there is no merit in the writ
petition and accordingly, the same is dismissed.
Sd/A.MUHAMED MUSTAQUE, JUDGE
ms
1 issue framed by the court
Whether the experience certificates produced by the petitioner satisfy the eligibility criteria for 'building works' under CPWD and BSNL rules.
Binoth
Executive Engineer (Civil), Bharat Sanchar Nigam Limited (BSNL)
M/s. Heather Constructions
M/s. Crescent Constructions
A.Muhamad Mustaque
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court