K. Subramiyan vs Kerala State Electricity Board -
2021 Latest Caselaw 23581 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR.JUSTICE N.NAGARESH
   TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
                       WP(C) NO. 25686 OF 2021
PETITIONER:
           K. SUBRAMANIYAN,
           AGED 62 YEARS,
           S/O. LATE KUTTAN PANICKER,
           REGISTERED A CLASS CONTRACTOR KERALA STATE,
           MYTHRI (PUTHUVIL HOUSE) MYLAKKADU P.O.,
           KOLLAM-691 571, KERALA STATE.

          BY ADVS.
          M.P.RAMNATH
          P.RAJESH (KOTTAKKAL)
          SEBASTIAN K.JOSE
          M.VARGHESE VARGHESE
          UMA R.KAMATH
          S.SANDHYA
          BEPIN PAUL
          SHALU VARGHESE
          S.DEEPAK
          ANTONY THARIAN
RESPONDENTS:

    1     KERALA STATE ELECTRICITY BOARD LTD.,
          VYDYUTHI BHAVANAM, PATTOM,
          THIRUVANANTHAPURAM, PIN-695 004,
          REPRESENTED BY ITS CHAIRMAN
    2     THE DEPUTY CHIEF ENGINEER,
          TRANSMISSION CIRCLE, KERALA STATE ELECTRICITY BOARD
          LTD., NALLALAM P.O., KOZHIKKODE,PIN-673 027
    3     CHIEF ENGINEER,
          TRANSMISSION NORTH, KERALA STATE ELECTRICITY BOARD
          LTD., NALLALAM P.O., KOZHIKKODE, PIN-673 027
    4     EXECUTIVE ENGINEER,
          TRANSMISSION DIVISION, KERALA STATE ELECTRICITY BOARD
          LTD., NALLALAM P.O., KOZHIKKODE, PIN-673 027
    5     FINANCE OFFICER,
          IN THE OFFICE OF DEPUTY CHIEF ENGINEER,
          TRANSMISSION CIRCLE,
          KERALA STATE ELECTRICITY BOARD LTD.,
          MALAPPURAM,PIN-676 505

           R1-5 BY ADV B.PRAMOD
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.25686/2021

                                   2




                            JUDGMENT

Dated this the 30th day of November, 2021

The petitioner, who is a A Class contractor under

the Kerala State with registration No.36/BSC/08-09, has

approached this Court, seeking to quash Exts.P17 and P18 to

the extent of rejecting the technical bid of the petitioner and to

declare that he is qualified for going to the next stage of

consideration of his Price Bid (BOQ) submitted by him along

with his tender submissions in Exts.P2 and P3 tender.

2. The petitioner claims that he is a A Class contractor.

The petitioner has been a regular contractor awarded with

works of various Departments of the Kerala Government and

the Kerala State Electricity Board Limited. WP(C).No.25686/2021

3. The 2nd respondent, Deputy Chief Engineer of the

KSEB invited tender for conversion of 66 KV single circuit line

to double circuit line in 110KV parameters from

Kunnamangalam Sub Station to Thamarassery Sub Station

(17.70kms). The petitioner submitted his bids. The

petitioner's bid is not considered and the respondents are

proceeding to award the work to somebody else. Therefore,

the petitioner approached this Court.

4. According to the petitioner, Exts.P6 to P15

certificates produced by him, would prove that the petitioner

has requisite experience and qualification to do the work

pertaining to civil works and line drawing works of 110KV DC

line and petitioner has sufficient experience in the said work.

However, the respondents have arbitrarily found that the

petitioner is not technically qualified. The petitioner points out

that Ext.P6 certificate would show that the petitioner has

experience in the drawing of territorial line to an extent of

7km. Exts.P8 and P9 certificates issued by Tata Projects Ltd. WP(C).No.25686/2021

would evidence that the petitioner is experienced in drawing

24kms of 220 KV HTL. The work tendered as per Ext.P10 is

having a length of 17.70kms of 110KV line. Still, the

petitioner's bid has been arbitrarily rejected.

5. The learned counsel for the petitioner submitted

that earlier in another work, when the petitioner's bid was

rejected, he approached this Court, filing W.P.(C) No.8408 of

2005 and this Court relying on Ext.P6 Experience Certificate

directed the KSEB to consider the petitioner's bid for award of

work.

6. When the petitioner came to note that the

petitioner's technical bid was rejected, the petitioner submitted

Ext.P19 representation on 05.11.2021. The representation

was not considered. But, subsequent to the filing of the writ

petition, the petitioner has received Exts.P24 and P25

communications of the respondents stating that the petitioner

is not pre-qualified. The Ext.P25 letter is undated. WP(C).No.25686/2021

7. The learned counsel for the petitioner submits that

the petitioner has more than sufficient experience. But, the

petitioner's bid has been illegally rejected. According to the

petitioner, if there is gross disparity between the amount

quoted by the successful bidder and that of the petitioner, then

the petitioner is entitled to get the work awarded to him.

8. The learned Standing Counsel representing the

respondents entered appearance and contested the writ

petition, filing a statement. The learned Standing Counsel

pointed out that as per Clause 4.1(a) of Ext.P3, the experience

required for the work is the technical knowledge and the

practical experience in construction of 25Kms of EHT lines.

The certificates produced by the petitioner would indicate that

the petitioner does not possess the requisite experience.

Therefore, rejection of the technical bid of the petitioner is

amply justified, contended the learned Standing Counsel.

9. As regards demanding an experience of 25Kms for

a work involving 17.70 Kms, the learned Standing Counsel WP(C).No.25686/2021

submitted that the work involved is drawal of High Tension

Electricity Line. A minimum safety standard has to be

maintained in the matter of drawal of such lines. Therefore,

the respondents deemed it necessary that minimum

experience of 25Kms of drawal of Heavy Electrical Lines is

required to carry out the work.

10. The learned Standing Counsel further pointed out

that after receiving a representation from the petitioner, the

petitioner was promptly replied as per a letter dated

15.11.2021 and he was informed that his bid failed in technical

clearance. The respondents have acted bonafide keeping in

mind the best interest of the public and public safety. As the

petitioner's bid is not technically cleared, the same was not

opened and respondents are not in a position to tell what is the

amount quoted by the petitioner,

11. I have heard the learned counsel for the petitioner

and the learned Standing Counsel for the respondents. WP(C).No.25686/2021

12. The qualification required for the work as prescribed

in Ext.P3, is as follows:

"The bidder shall be licensed to execute works on all LT/HT/EHT installations as per the CEA regulations who has adequate technical knowledge and practical experience in construction of 25km of EHT lines. License from any other State Government inspectorate for the above installations are acceptable for bidding purpose subject to the condition that License from Kerala Inspectorate will be submitted within 15 days from the date of Award of Contract/Work Order. An undertaking in this regard should be submitted in the bidders letter head signed by authorised signatory along with bid documents. Non submissions of License from Kerala Electrical Inspectorate within the stipulated time will lead to cancellation of LOA/Work order. A copy of the license certificate from any valid license holder who can be recruited by the successful tenderer shall be attached along with the bid in PQ cover, Authorization letter of the licensed contractor should also be submitted along with the PQbid."

Therefore, practical experience in construction of 25Kms of

EHT lines is to be satisfied. It is an admitted position that as

per Ext.P6, the petitioner possesses experience of drawal of

7Kms of 110 KV DC and as per Exts.P8 and P9, the

experience of the petitioner is less than 25kms. Therefore,

obviously, going by the tender condition, the petitioner is not WP(C).No.25686/2021

qualified to bid for the work.

13. As far as the contention of the petitioner regarding a

higher experience demanded for a lesser extent of work, this

Court is of the view that as the work involves drawal of High

Tension Electricity lines, it is for the respondents to take into

consideration the safety standards of electrical lines and the

minimum experience required by the contractors who are to be

entrusted with the work. This Court cannot substitute its

wisdom or logic, in the matter of experience required for

drawal of High Tension Electric Lines.

Going through the pleadings in the writ petition and

after hearing the arguments raised on either side, this Court

finds that the rejection of the petitioner's bid is amply justified in

view of the eligibility and qualification requirements of intending

bidders laid down in Ext.P3. In the circumstances, the writ

petition fails and it is dismissed.

Sd/-

N. NAGARESH JUDGE SR WP(C).No.25686/2021

APPENDIX OF WP(C) 25686/2021

PETITIONER'S EXHIBITS:

Exhibit P1 TRUE PHOTO COPY OF THE A CLASS CONTRACTORS REGISTRATION CARD KERALA STATE BEARING NO.36/BSC/08-09 OF THE PETITIONER VALID UP TO 31.03.2021 Exhibit P2 TRUE PHOTO COPY OF THE NOTICE INVITING TENDER HAVING E-TENDER NO.KSEBL/DCE/TC/E1/2021-22 DT 12.08.2021 ISSUED BY THE 2ND RESPONDENT Exhibit P3 TRUE PHOTO COPY OF THE RELEVANT PORTIONS OF THE TENDER NOTIFICATION DOCUMENT PERTAINING TO E-TENDER NO.KSEBL/DCE/TC/E1/2021-22 DT 12.08.2021 INTERALIA HAVING THE RELEVANT PORTION OF SECTION 1 OF VOLUME 1 THEREOF AS ISSUED BY THE 2ND RESPONDENT Exhibit P4 TRUE PHOTO COPY OF THE BID SUBMISSION CONFIRMATION DT. 09.09.2021 IN RESPECT OF E-TENDER NO.KSEBL/DCE/TC/E1/2021-22 Exhibit P5 TRUE PHOTO COPY OF THE BID ACKNOWLEDGMENT DT 09.09.2021 IN RESPECT OF E-TENDER NO.KSEBL/DCE/TC/E1/2021-22 Exhibit P6 TRUE PHOTO COPY OF CERTIFICATE DT 15.09.2009 FROM THE 1ST RESPONDENT FOR COMPLETION OF 110 KV DC LINE FROM KUNDARA TO PERINADU FOR THE TRACTION SUB STATION PERINADU ALONG WITH THE TRUE TYPED COPY THEREOF ATTACHED Exhibit P7 TRUE PHOTO COPY OF THE LETTER OF RECOGNITION BEARING NO.D.O.DCE (T) KTR/GEN/TB1/17-08/2007 ISSUED FROM THE 1ST RESPONDENT THROUGH IT DEPUTY CHIEF ENGINEER TRANSMISSION CIRCLE, KOTTARAKKARA Exhibit P8 TRUE PHOTO COPY OF THE CERTIFICATE DATED 08.12.2004 ISSUED TO PETITIONER FROM TATA PROJECT LTD FOR 1ST RESPONDENT IN CONNECTION WITH CIVIL WP(C).No.25686/2021

ERECTION WORKS FOR KSEB 220 KV DC TWIN MOOSE ACSR CONDUCTOR PER PHASE TRANS LINES (LILO) TO KUNDARA SUB STATION Exhibit P9 TRUE PHOTO COPY OF THE CERTIFICATE DATED 20.08.2005 ISSUED TO MANU S. THE CONTRACTOR OF PETITIONER FROM TATA PROJECT LTD FOR 1ST RESPONDENT IN CONNECTION WITH THE APPROX.24 KM LENGTH WORK FOR KSEB 220 KV DC TWIN MOOSE ACSR CONDUCTOR PER PHASE TRANS LINES (LILO) TO KUNDARA SUB STATION Exhibit P10 TRUE PHOTO COPY OF THE CERTIFICATE DATED 28.07.2001 ISSUED TO PETITIONER FROM 1ST RESPONDENT IN CONNECTION WITH ERECTION OF FABRICATED YARD STRUCTURES AT KSEB 220 KV SUB STATION UNDER TRANSMISSION DIVISION, KUNDARA SUB STATION Exhibit P11 TRUE PHOTO COPY OF THE CERTIFICATE DATED 07.12.2004 ISSUED TO PETITIONER FROM 1ST RESPONDENT IN CONNECTION WITH CONSTRUCTION OF FOUNDATION OF YARD STRUCTURE AND EQUIPMENT AT KSEB 220 KV SUB STATION POTHANCODE, UNDER TRANSMISSION DIVISION, CHACKAI THIRUVANANTHAPURAM Exhibit P12 TRUE PHOTO COPY OF THE CERTIFICATE DATED 31.03.2015 ISSUED TO PETITIONER FROM HLL LIFE CARE LTD (A GOVT OF INDIA ENTERPRISES) FOR CIVIL WORKS DONE FOR 5 DOCTORS DISPENSARY (ESIC) AT KOLLAM Exhibit P13 TRUE PHOTO COPY OF THE CERTIFICATE DATED 19.01.2017 ISSUED TO PETITIONER FROM HLL LIFE CARE LTD (A GOVT OF INDIA ENTERPRISES) FOR CIVIL WORKS DONE FOR 2 DOCTORS DISPENSARY (ESIC) AT VILAKUDY Exhibit P14 TRUE PHOTO COPY OF THE CERTIFICATE DATED 23.06.2020 ISSUED TO PETITIONER FROM SOUTHERN RAILWAY FOR THE WORKS DONE FOR THE NEW BROAD GAUGE LINE BETWEEN ANGAMALI AND KALADI IN CONNECTION WITH THE ANGAMALI SABARIMALA RAIL ROUTE LAYING WP(C).No.25686/2021

Exhibit P15 TRUE PHOTO COPY OF THE JOINT VENTURE AGREEMENT BETWEEN THE PETITIONER AS THE MEMBER AND SREEKUMAR K., (QUILON CONSULTING ENGINEERS) AS MEMBER-IN- CHARGE DATED 8.9.2021 Exhibit P16 TRUE PHOTO COPY OF THE BID FORM DT 09.09.2021 ON STAMP PAPER EXECUTED BY THE PETITIONER IN FAVOUR OF THE 2ND RESPONDENT IN RESPECT OF THIS VERY EXT P2, P3 TENDER VIZ, E-TENDER NO.TC/E1/2021-22 DT 12.08.2021 Exhibit P17 TRUE PHOTO COPY OF THE TENDER SUMMARY REPORTS DT 03.11.2021 (UPDATED ON 02.11.2021) OF THE 2ND RESPONDENT UNDER THE 1ST RESPONDENT IN RESPECT OF EXT P2, P3 TENDER AND GIVING REASON FOR REJECTING THE PRE QUALIFICATION BID OF PETITIONER Exhibit P18 TRUE PHOTO COPY OF THE MINUTES OF THE PRE-QUALIFICATION COMMITTEE (RESPONDENTS 2 TO 5)N MEETING HELD AT 02.30 PM ON 27.10.2021 Exhibit P19 TRUE PHOTO COPY OF THE REPRESENTATION FOR RECONSIDERATION OF E-TENDER DT 05.11.2021 SENT BY THE PETITIONER TO THE 2ND RESPONDENT LONG WITH THE POSTAL REGISTRATION RECEIPT DT 05.11.2021 APPENDED THERETO Exhibit P20 TRUE PHOTO COPY OF THE JUDGMENT DT 01.06.2005 IN WPC NO.8408/2005 OF TH HON'BLE HIGH COURT OF KERALA Exhibit P21 TRUE PHOTO COPY OF THE COMMON JUDGMENT DT 05.12.2005 OF THE DIVISION BENCH OF HON'BLE HIGH COURT OF KERALA IN WA NO.1745/2005 ALONG WITH WPC NO.14452/2005 Exhibit P22 TRUE PHOTO COPY OF THE WORK ORDER NO.29/21 AND 29/20-21 DT 09/11/2020 FOR WORKS BEARING REFERENCE NO.TCTPA/AEEI/KONNATHADY-

MURIKKASSERY/20-21/1188 UNDER THE DEPUTY CHIEF ENGINEER, TRANSMISSION CIRCLE, KSEB LTD., THODUPUZHA, IDUKKI WP(C).No.25686/2021

DISTRICT,IN FAVOUR THE PETITIONER Exhibit P23 TRUE PHOTO COPY OF THE LETTER DT 11.02.2021 ISSUED BY THE 1ST RESPONDENT FORM THE OFFICE OF THE DIRECTOR (TRANSMISSION, SYSTEM OPERATION & SAFETY), THIRUVANANTHAPURAM, TO THE PETITIONER CALLING HIM FOR NEGOTIATION AND REQUESTING HIM TO QUOTE ROCK BOTTOM PRICE IN RESPECT OF THE WORK UP GRADATION OF EXISTING 27.57.KM KOTHAMANGALAM-ALUVA 66 KV DC LINE TO 110 KV DC LINE Exhibit P24 TRUE PHOTO COPY OF THE LETTER DT 12.02.2021 SUBMITTED BY THE PETITIONER OFFERING A REDUCED RATE IN NEGOTIATION IN PURSUANCE OF EXT P23 Exhibit P25 THE TRUE PHOTOCOPY OF THE UNDATED LETTER - OF NOVEMBER 2021 BEARING NO. T2/KNLM/TMSRY LINE/2021-22/1641 FROM THE 2ND RESPONDENT TO PETITIONER SERVED ON 17.11.2021 ALONG WITH THE POSTAL COVER THEREWITH.

Exhibit P26 THE TRUE PHOTOSTAT COPY OF THE PRICE BID OF THE PETITIONER(PERCENTAGE BOQ) SUBMITTED ALONG WITH THE TENDER, IN THE EXHIBIT P3 TENDER PROCESS BEFORE THE 2ND RESPONDENT.

RESPONDENTS' EXHIBITS:

ANNEXURE R1(a) THE TRUE COPY OF THE LETTER DATED 15.11.2021 ISSUED TO THE PETITIONER.