The Kerala High Court dismissed a writ petition challenging the rejection of a company's tender for a railway reconstruction project. The court held that submission of a Ballast Test Certificate was mandatory under specific tender specifications, rendering the petitioner's eligibility bid invalid.
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 N.NAGARESH
THURSDAY, THE 03RD DAY OF DECEMBER 2020/12TH AGRAHAYANA, 1942
WP(C).No.34126 OF 2019(M)
PETITIONER:
M/S M.D. ESTHAPPAN INFRASTRUCTURES PVT. LTD., OFFICE AT ROOM NO.144, NEAR ST. JOSEPH HIGH SCHOOL, RAILWAY STATION NAGAR, ANGAMALY, ERNAKULAM, REPRESENTED BY ITS DIRECTOR, JOSY STEPHEN, AGED 51 YEARS, S/O.M.D. ESTHAPPAN, MOOLAN HOUSE, ANGAMALY, ERNAKULAM DISTRICT-683572.
BY ADVS. SRI.S.SHANAVAS KHAN SMT.S.INDU
RESPONDENTS:
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R1-5 BY ADV. SMT.SUMATHY DANDAPANI (SR.), SC R1-5 BY SRI.B.RAJESH, SC, RAILWAYS R6 BY ADV. SRI.K.BABU THOMAS R6 BY ADV. SMT.MARYKUTTY BABU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-12-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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N. NAGARESH, J.
W.P.(C) No.34126 of 2019
Dated this the 3rd day of December, 2020
J U D G M E N T
~ ~ ~ ~ ~ ~ ~ ~ ~
The petitioner is a Company engaged in the field
of construction activities. The petitioner is before this Court seeking the following reliefs:-
(i) Declare that petitioner is entitled to be awarded the work of 'Shornur-Mangalore Section – Pro.Reconstruction of Branch No.1162 at Kilometre 804/500-700 as 14x12.20 metre PSC-1 girder and slab and BR No.1163 at Km 805/00-100 as 1x15.0m PSC-1 girder and slab between Cheruvathoor and Nileeswaram stations, earth work and blanketing for formation on approaches, collection of ballast, linking of track and other protective works' mentioned in Ext.P1 as he is the lowest tenderer in respect of the said work.
(ii) Declare that invitation of 6th respondent, who is the second lowest tenderer in respect of the work of 'Shornur-Mangalore Section–Pro. Reconstruction of Branch No.1162 at Kilometre 804/500-700 as 14x12.20 metre PSC-1 girder and slab and BR No.1163 at Km 805/00-100 as 1 x 15.0m PSC-1 girder and slab between Cheruvathoor and Nileeswaram stations, earth work and blanketing for formation on approaches, collection of ballast, linking of track and other protective works”, overlooking the petitioner's claim is illegal, arbitrary and unsustainable.
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(iii) Issue a Writ of mandamus or any other Writ, Order or direction directing the respondents 1 to 5 to refrain from proceeding with the allotment of work of 'Shornur-Mangalore Section – Pro. Reconstruction of Branch No.1162 at Kilometre 804/500-700 as 14x12.20 metre PSC-1 grider and slab and BR No.1163 at Km 805/00-100 as 1x15.0m PSC-1 girder and slab between Cheruvathoor and Nileeswaram stations, earth work and blanketing for formation on approaches, collection of ballast, linking of track and other protective works' mentioned in Ext.P1 to the 6th respondent.
(iv) Issue a Writ of mandamus or any other Writ, Order or direction directing the respondents 1 to 5 to finalise the work of 'Shornur-Mangalore Section – Pro.Reconstruction of Branch No.1162 at Kilometre 804/500-700 as 14x12.20 metre PSC-1 girder and slab and BR No.1163 at Km 805/00-100 as 1x15.0m PSC-1 girder and slab between Cheruvathoor and Nileeswaram stations, earth work and blanketing for formation on approaches, collection of ballast, linking of track and other protective works' mentioned in Ext.P1 in favour of petitioner.
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linking of track and other protective works'. The petitioner was the lowest tenderer and the 6th respondent was the second lowest. However, the tender made by the petitioner has been illegally rejected and respondents 1 to 5 invited the 6th respondent for negotiations overlooking the claim of the petitioner.
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action of respondents 1 to 5 in holding negotiations with the 6th respondent would go against the guidelines laid down by the Central Vigilance Commission in that regard, contended the petitioner.
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as per Clause 12 of the bid document marked as Ext.R6(a), every tenderer is required to submit the original test report of ballast, failing which the offer shall be summarily rejected. Since the petitioner failed to submit the original test report of ballast, its bid was invalid and consequently, the 6th respondent was declared as eligible and qualified bidder.
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that Ballast Test Certificate is an optional document for uploading along with the tender. Since uploading of Ballast Test Certificate is made optional, the petitioner did not upload the same. Rejection of petitioner’s tender for the said reason, is arbitrary and illegal. The petitioner has a further case that production of Ballast Test Certificate in the case at hand is optional since the work involved is mainly civil in nature.
“12. Important Note:- The tenderer is required to submit the original test report of ballast as per provisions of “specification of track ballast IRS-GE-1,
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June 2016” Failing which the offer shall be summarily rejected.”
makes it clear that all documents in support of fulfillment of eligibility criteria should be uploaded along with the tender and that the tenders without documentary evidence in support of eligibility criteria will be summarily rejected.
reports of the ballast for the Abrasion value, Impact value and water absorption from the approved laboratory/institution are to be enclosed along with the tender as per provisions of Specification of track ballast IRS–GE–1–June 2016 corrected upto date, failing which the offer shall be summarily rejected. The said provision in Ext.R1(b) is a clear indication that submission/uploading of Ballast Test Certificate is mandatory.
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5 have produced Ext.R1(g) advertisement in respect of tender notice in question published in newspapers. It has been specified therein by the Chief Engineer (Construction) that if bidders require any further information or clarification, the Chief Administrative Officer should be consulted. In the said circumstances, the petitioner ought to have consulted the said officer, if the petitioner had any doubt regarding the requirement of submission/uploading of Ballast Test Certificate.
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petitioner that in the nature and quantity of the work in question, uploading of Ballast Test Certificate was not required. Exts.R1(a) and R1(b) documents containing tender conditions would show that submission/uploading of Ballast Test Certificate was mandatory.
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petitioner failed to produce a material document which was necessary to assess the eligibility of the petitioner for award of the work. A thorough reading of the tender conditions by the petitioner would have revealed to the petitioner the necessity of uploading Ballast Test Certificate. Having failed to do so, the petitioner cannot be heard to contend that rejection of its bid is arbitrary.
The writ petition filed by the petitioner is therefore devoid of merit and it is accordingly dismissed.
Sd/- N. NAGARESH, JUDGE
aks/30.11.2020
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APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGE OF THE TENDER DOCUMENT SUBMITTED BY THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE DOCUMENT EVIDENCING THE QUOTING OF RATE BY PETITIONER AS WELL AS 6TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE TENDER DOCUMENT IN RESPECT OF THE SAID WORK. EXHIBIT P4 TRUE COPY OF THE OFFICE ORDER NO. 68/10/2005 DATED 25/10/2005 OF THE CENTRAL VIGILANCE COMMISSION.
EXHIBIT P5 TRUE COPY OF CIRCULAR NO,4/3/07 DATED 03/03/2007 OF THE CENTRAL VIGILANCE COMMISSION.
EXHIBIT P6 TRUE COPY OF THE CIRCULAR NO.37/10/06 DATED 03/10/2006 OF THE DIRECTOR, CENTRAL VIGILANCE COMMISSION.
EXHIBIT P7 TRUE COPY OF THE CIRCULAR NO.01/01/2010 DATED 20/01/2010 OF THE CHIEF TECHNICAL EXAMINER OF CENTRAL VIGILANCE COMMISSION.
RESPONDENTS' EXHIBITS:
EXHIBIT-R1(a) TRUE COPY OF THE E-TENDER APPLICATION NO.07-CE-CN-ERS-2019-OT DATED 14/10/2019. EXHIBIT-R1(b) TRUE PHOTOCOPY OF THE DETAILS AND SPECIFICATIONS OF WORK HAS UPLOADED IN THE E-TENDER.
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| EXHIBIT-R1(c) | TRUE PHOTOCOPY OF THE GUIDELINES FOR THE TENDER FOR CONSTRUCTION. |
|---|---|
| EXHIBIT-R1(d) | TRUE PHOTOCOPY OF THE CHECK LIST FOR THE GUIDANCE OF TENDERERS FOR RAILWAY CONSTRUCTION. |
| EXHIBIT-R1(e) | TRUE PHOTOCOPY OF THE RELEVANT PAGES TENDER QUALIFYING CONDITION. |
| EXHIBIT-R1(f) | TRUE COPY OF THE AFFIDAVIT SUBMITTED BY THE PETITIONER/TENDERER |
| EXHIBIT-R1(g) | TRUE PHOTOCOPY OF THE ADVERTISEMENT PUBLISHED IN A MALAYALAM DAILY, DATED 01.10.2019 (MALAYALA MANORAMA) |
| EXHIBIT-R1(h) | TRUE PHOTOCOPY OF THE RELEVANT PAGE OF IREPS WEB PORTRAIT SHOWING NO QUERIES CLARIFICATIONS AVAILABLE FOR THIS TENDER. |
| EXHIBIT-R1(i) | TRUE PHOTOCOPY OF THE JUDGMENT IN WPC 21541/2019 OF HIGH COURT OF KERALA ORDER DATED 3/10/2019. |
| EXHIBIT R1(J) | TRUE PHOTOCOPY OF THE EXTRACT OF PARA |
| 8.3 OF PART-B 'REGULATIONS FOR TENDERS AND CONTRACTS AND INSTRUCTIONS TO TENDERERS'. |
|
| EXHIBIT R6(a): | TRUE COPY OF CLAUSE 12 OF TENDER DOCUMENTS WITH IMPORTANT NOTE REQUIRING SUBMISSION OF TEST CERTIFICATE OF BALLAST. |
| EXHIBIT R6(b): | TRUE COPY OF TEST CERTIFICATE OF BALLAST PRODUCED BY THE 6TH RESPONDENT. |
| EXHIBIT R6(c): | TRUE COPY OF LETTER OF THE RAILWAY |
| INVITING 6TH RESPONDENT FOR |
|
| NEGOTIATION OF THE RATES QUOTED DOWNLOADED. |
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EXHIBIT R1 K THE TRUE COPY OF RELEVANT EXTRACT REGARDING THE 'SUBMISSION OF TENDER'
EXHIBIT R1 L THE TRUE COPY OF CERTIFICATE OF INCORPORATION PRODUCED BY THE PETITIONER
3 issues framed by the court
Whether rejection of petitioner's tender for failing to upload optional Ballast Test Certificate is arbitrary and illegal.
Whether the requirement to upload Ballast Test Certificate is mandatory despite text stating it as optional in the main tender document.
Whether the Court should intervene in the tender selection process on grounds of technical defects affecting public interest.
Colour shows how this judgement treated each authority
W.P.(C) No.21541/2019Referred¶14
W.P.(C) No.21541/2019
Air India Limited v. Cochin International Airport Ltd. and othersReferred¶16
Air India Limited v. Cochin International Airport Ltd. and others [(2000) 2 SCC 617] · Who else cites this
M/S M.D. ESTHAPPAN INFRASTRUCTURES PVT. LTD.
THE GENERAL MANAGER, SOUTHERN RAILWAY
SURABHI EARTH MOVERS
N. NAGARESH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
