Forsha Builders And Developers ... vs State Of Kerala
2023 Latest Caselaw 10946 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
         THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
 THURSDAY, THE 26TH DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945
                      WP(C) NO. 35169 OF 2023
PETITIONER:

             FORSHA BUILDERS AND DEVELOPERS PVT.LTD
             HAVING ITS REGISTERED OFFICE AT ARAFA
             CENTRE, NULLIPADY, KASARAGOD DISTRICT,
             REPRESENTED BY ITS MANAGING DIRECTOR,
             SHAMEER M.A, AGED 46 YEARS, S/O.ABDULLA KUNHI,
             RESIDING AT MASTHIKUND, POST MULIYAR,
             KASARAGOD DISTRICT, PIN - 671121
             BY ADV.
             SRI.NIREESH MATHEW

RESPONDENTS:

     1       STATE OF KERALA
             REPRESENTED BY THE SECRETARY TO GOVERNMENT,
             HARBOUR ENGINEERING DEPARTMENT, KAMALESWARAM,
             MANACAUD, THIRUVANANTHAPURAM, PIN - 695009
     2       THE HARBOUR ENGINEERING DEPARTMENT
             O/O. CHIEF ENGINEER, VISHINJAM ROAD,
             KAMALESWARAM, THIRUVANANTHAPURAM-695009,
             REPRESENTED BY ITS CHIEF ENGINEER.
     3       THE HARBOUR ENGINEERING DEPARTMENT
             CENTRAL CIRCLE, HAJI KCM, PARAMARA ROAD,
             ERNAKULAM NORTH, KACHERIPADY, ERNAKULAM-682018
             REPRESENTED BY ITS SUPERINTENDING ENGINEER.
             BY ADV.
             SMT.VIDYA KURIAKOSE - GP



      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   26.10.2023,   THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.(C).No. 35169 of 2023
                                  :2:



                     DEVAN RAMACHANDRAN, J.
                 =========================
                      W.P.(C).No. 35169 of 2023
                ==========================
                Dated this the 26th day of October, 2023

                             JUDGMENT

The petitioner, which is a Company registered under the

Companies Act, claims to be a Class A Contractor and asserts that

they proffered a tender, in response to the notification issued by

the Public Works Department (PWD). They say that, however, on

account of an inadvertent omission, the relevant audited Balance

Sheet was omitted to be attached along with the tender, but in its

place, another one was accompanied; and that, on knowing this

mistake, they themselves brought it to the notice of the competent

Authority and requested that they be given an opportunity of

substituting it with the correct document, which has now been

rejected. They say that they, therefore, approached this Court and

obtained Ext.P11 judgment, but that in spite of the same, Ext.P12

order has now been issued by the 3rd respondent, rejecting their

plea and saying that earlier refusal of their tender cannot be

reviewed.

2. Sri.Nireesh Mathew - learned counsel for the petitioner,

vehemently argued that what his client did was only an obvious

mistake because, they had earlier given an audited Balance Sheet W.P.(C).No. 35169 of 2023

which was not in its proper format, and then sought to be

substituted was the one which was properly settled; and that this

would have only helped the 3rd respondent in arriving at the best

offer in response to the notification. He thus prayed that Ext.P12

be quashed and the competent Authority of the PWD be directed to

consider his client's bid also, after affording them an opportunity of

substituting the relevant audited Balance Sheet.

3. Smt.Vidya Kuriakose - learned Government Pleader, in

response, however, submitted that the situation is not as innocuous

as it is now presented by the petitioner because, along with their

original bid offer, they produced a Balance Sheet which was found

to be not settled by their Auditor, but by someone else. She

submitted that, therefore, this would clearly indicate an attempt by

the petitioner to dress up their accounts in a manner favourable to

them, and hence that there was no question of them being allowed

to substitute it with another Balance Sheet, as has now been

requested by them. She asserted that this is all that has been

stated in Ext.P12 and, therefore, prayed that this writ petition be

dismissed.

4. I must record upfront, before answering the afore rival

submissions, it must be kept in mind that every tender process has

to be construed strictly. The time frames and the criteria W.P.(C).No. 35169 of 2023

mentioned in the tender notification will have to be conformed to

by every person/entity interested in responding to it, and no

exceptions whatsoever can be made in individual cases, whatever

be the justification that may be offered for the same.

5. In the case at hand, the petitioner had made their bid offer,

supported by an audited Balance Sheet, but, which was then found

to be not proper; and they sought to substitute it with another.

Had this been only a mistake, then perhaps this Court would have

come to the line - even within the afore limitation - but, as

explained by the learned Government Pleader, the petitioner had

originally produced a Balance Sheet, which was not audited by

their approved Auditor but by someone else. Obviously, their

attempt to replace this with a properly audited Balance Sheet can

only seem to be an afterthought. I do not propose to speak on this

any further in this judgment, since it is unnecessary.

6. As matters now stand, it is unequivocally admitted by the

petitioner themselves that they had not produced the relevant

document along with the bid offer; and for that reason alone, the

same was deserving of being rejected by the competent Authority,

which has been done. The factum of them having brought this

error to the notice of the competent Authority would be, in my firm

view, totally irrelevant, because when they have committed a W.P.(C).No. 35169 of 2023

mistake which would operate against them as per the notified

tender conditions, they will have to suffer the resultant

consequences.

In the afore circumstances, I cannot find Ext.P12 to be in

error; and therefore, dismiss this writ petition without any further

orders.

Sd/-

DEVAN RAMACHANDRAN JUDGE anm W.P.(C).No. 35169 of 2023

APPENDIX OF WP(C) 35169/2023

PETITIONER EXHIBITS Exhibit-P1 TRUE PHOTOCOPY OF THE LICENSE ISSUED BY THE SUPERINTENDING ENGINEER, MINOR IRRIGATION CIRCLE, KOZHIKODE DATED 16.09.2020 ISSUED IN THE NAME OF THE PETITIONER COMPANY.

Exhibit-P2 TRUE PHOTOCOPY OF THE NOTICE INVITING TENDER DATED 26.07.2023 ISSUED BY THE 3RD RESPONDENT.

Exhibit-P3 TRUE PHOTOCOPY OF THE CERTIFICATE DATED 28.02.2022 ISSUED BY THE DEPARTMENT OF PORTS AND FISHERIES DIVISION.

Exhibit-P4 TRUE PHOTOCOPY OF THE APPLICATION RECEIPT EVIDENCING THE SUBMISSION OF APPLICATION AND PAYMENT OF FEES DATED 04.09.2023.

Exhibit-P5 TRUE PHOTOCOPY OF THE FORM OF TENDER SUBMITTED BY THE PETITIONER COMPANY.

Exhibit-P6 TRUE PHOTOCOPY OF THE PRELIMINARY AGREEMENT DATED 03.09.2023.

Exhibit-P7 TRUE PHOTOCOPY OF THE AFFIDAVIT DATED 03.09.2023 SUBMITTED BEFORE THE 3RD RESPONDENT.

Exhibit-P8 TRUE PHOTOCOPY OF THE TIME SCHEDULE REPORT SUBMITTED BEFORE THE 3RD RESPONDENT.

Exhibit-P9 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 09.10.2023 RECEIVED BY THE 3RD RESPONDENT ON 09.10.2023.

Exhibit-P10 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 09.10.2023 RECEIVED BY THE 2ND RESPONDENT ON 10.10.2023.

Exhibit-P11 TRUE PHOTOCOPY OF THE JUDGMENT DATED 19.10.2023 IN WP(C) NO.34809/2023 PASSED BY THIS HON'BLE COURT.

Exhibit-P12 TRUE PHOTOCOPY OF THE MINUTES/ORDER DATED 21.10.2023 PASSED BY THE 3RD RESPONDENT.

RESPONDENTS' EXHIBITS : NIL.