Kerala High Court

Vasudevan.K.M vs Chief Engineer(Naval Works ) Kochi on 28 July, 2025

WA NO.1444/2025                    1



                                                 2025:KER:55362

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

  THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                               &
          THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
   MONDAY, THE 28TH DAY OF JULY 2025 / 6TH SRAVANA, 1947

                      WA NO. 1444 OF 2025

        ARISING OUT OF THE JUDGMENT DATED 09.06.2025 IN WP(C)
             NO.23477/2024 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:

           VASUDEVAN.K.M
           AGED 46 YEARS
           S/O.T.E.SREEKUMARANTHIRUMUMBU, OLORA MADAM,
           PAYYANUR, PO. PAYYANUR, KANNUR DISTRICT,
           PROPRIETOR, M/S.V.ASSOCIATES, DEFENCE CONTRACTOR
           & CONSULTING ENGINEER, RAMANTHALI PO,
           KANNUR DISTRICT, PIN - 670308


           BY ADVS.
           SHRI.M.V.AMARESAN
           SRI.S.S.ARAVIND



RESPONDENTS/RESPONDENTS:

    1      CHIEF ENGINEER(NAVAL WORKS) KOCHI
           OFFICE OF THE CHIEF ENGINEER(NAVAL WORKS)KOCHI
           KATARIBAGH, NAVAL BASE P.O., KOCHI, PIN - 682004

    2      CHIEF ENGINEER
           OFFICE OF THE CHIEF ENGINEER SOUTHERN COMMAND,
           SIR MANECKJI MEHTA ROAD, CAMP, PUNE,
           MAHARASHTRA, PIN - 411001

    3      ADDL.R3:
           M/S.CREATIVE BUILDERS,
           CREATIVE TOWER, EROOR P.O., VYTTILA
 WA NO.1444/2025                        2



                                                         2025:KER:55362

            REPRESENTED BY ITS MANAGING PARTNER,
            VISHNU T.P.,PIN- 682 306,
            (ADDL.R3 IS IMPLEADED AS PER ORDER DATED
            22.05.2025 IN IA NO.1/2025 IN WP(C)
            NO.23477/2024)


            BY ADVS.
            SRI.DEEPU THANKAN, R3
            SMT.UMMUL FIDA
            SMT.LAKSHMI SREEDHAR
            SMT.CINDIA S.
            SMT.POOJA CHANDRAN
            SMT.GAYATHRI G.
            SRI.P.R.AJITH KUMAR, CGC


     THIS    WRIT   APPEAL    HAVING   COME   UP   FOR    ADMISSION   ON
17.06.2025,     THE   COURT     ON     28.07.2025    DELIVERED        THE
FOLLOWING:
 WA NO.1444/2025                         3



                                                           2025:KER:55362


                             JUDGMENT

Dated this the 28th day of July, 2025

Syam Kumar V.M., J.

This appeal is filed challenging the judgment dated

09.06.2025 of the learned Single Judge in W.P.(C) No.23477 of

2024. Appellant was the petitioner in the said Writ Petition.

2. Appellant is a C-class contractor, enlisted under the

Chief Engineer, Southern Naval Command, Pune. He had

participated in the tender invited by respondent No.1 in respect of a

work titled "Completion of incomplete works for setting up single

offices accommodation as a part of augmentation of infrastructure

and facilities at INA, Ezhimala (phase II)". The tender submitted by

him was rejected vide Exhibit P9 stating that the number of enlisted

contractors of eligible class are 8 and the bidder has not submitted

required documents for upgradation to the eligible class i.e. A class.

The appeal preferred by him before respondent No.2 was also

rejected vide Exhibit P11 stating that he had failed to upload the

requisite documents of upgradation criteria along with Cover 1 in

terms of Note 2 of Appendix A to NIT as intimated by CE Zone.

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Aggrieved by such rejection of bid and dismissal of his appeal, the

appellant had filed the W.P.(C) seeking the following reliefs:

"(i) issue a writ of certiorari and to quash Exhibit P9 and Exhibit P11 ;

(ii) to declare that the petitioner is eligible to submit his bid in response to Exhibit P6 re-tender issued pursuant to Exhibit P1 ;

(iii) To issue a writ of mandamus or any other appropriate writ or orders directing the 1st respondent to consider Exhibit P7 bid and open his price bid and award work to him if his is the lowest quoted bid ;

(iv) to direct the 2nd respondent to allow Exhibit P10 appeal ;

(v) issue a writ of certiorari and to quash Exhibit P14 being illegal and arbitrary ;

(vi) to dispense with filing of the translation of vernacular documents ; and

(vii) to grant such other and further reliefs as this Hon'ble Court may consider just and proper in the facts and circumstances of the case."

Subsequently, taking note of the fact that Ext.P13 communication

was issued, which revoked the technical evaluation uploaded earlier

for the tender and thus Ext.P9 communication became irrelevant

and infructuous and that respondent No.1 had proceeded with

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technical bid evaluation produced as Exhibit P14, appellant

amended the Writ Petition, incorporating pleadings and prayer, to

set aside Exhibit P14. He had inter alia alleged that only two out of

the 11 technical bids were admitted and 5 out of the same were

rejected for purported failure to submit tender extension validity

though they met the criteria.

3. The learned Single Judge after hearing both sides

dismissed the petition, inter alia holding that, no illegality could be

found in Exhibits P9 and P11 and that judicial review in the matter of

tenders is confined to issues where any illegality, irrationality, or

procedural impropriety is committed by the decision making

authority and to prevent arbitrariness and favoritism. It was held that

the rejection of appellant's tender vide Exhibit P9 was mainly for

the reason that he had failed to produce documents to establish his

eligibility under Class A. The learned Single Judge also noted that

there were 8 class A contractors who submitted bids and the

appellant's bid could not have been entertained as per the mandates

laid down in the tender. The learned Single Judge reasoned that the

writ court is not a court of appeal and it cannot review the decision of

the tendering authority and could only look into the decision-making

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process. Holding that the Court cannot declare the appellant as the

person qualified when the tendering authority itself had found him

ineligible, the Writ Petition was dismissed. Aggrieved by the same,

this appeal is preferred by the appellant.

4. Heard Sri.M.V.Amaresan, Advocate for the appellant,

Sri.P.R.Ajith Kumar, C.G.C. and Sri.Deepu Thankan, Advocate for

the 3rd respondent.

5. The learned counsel for the appellant contended that

the impugned judgment had confined consideration to Exhibit P9,

which had already been revoked during pendency of the matter and

the further technical bid evaluation, evidenced by Exhibit P14 was

not considered or dealt with by the learned Single Judge. It is also

contended that the fact that the appellant had admitted in the first

technical bid evaluation and had also been given an extension of

validity of the bid had eluded consideration. According to the learned

counsel, in Exhibit P14, which is a technical bid evaluation dated

28.03.2025, 5 out of 11 bids were rejected for not extending the bid

validity, and hence, the actual bids for consideration are less than 7,

which makes the appellant entitled to be considered according to

Note 1 of Appendix A of the notice inviting tender. The legality of

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Exhibit P14 and the process adopted by respondent No.1, which is

alleged to be arbitrary, malafide and and opposed to the notice

inviting tender, were overlooked. As regards the finding that the

tender of the appellant was rejected on account of appellant's failure

to upload the required documents showing eligibility for upgradation

to Class A, it is contended that if at all there was any deficiency of

any document, the respondents ought to have issued a

communication, as stipulated in Note 9 and no such notice had been

issued to the appellant. Reliance is placed on the dictum laid down

in Dutta Associates P. Ltd. v. Indo Merchantiles P. Ltd and

others [(1997) 1 SCC 53] and it is contended that the course

adopted by the tendering authority in unilaterally issuing a re-tender,

citing administrative reasons and rejecting the bid submitted by the

appellant without adhering to Note 1 and Note 9 of the notice inviting

tender etc., amounts to arbitrariness and unreasonableness.

Reliance is also placed on the dictum laid down in Subodh Kumar

Singh Rathour v. Chief Executive Officer [2024 KHC 6342] to

buttress the contention that the process of decision making without

any regard to the notice inviting tender is squarely opposed to the

public interest. The learned counsel contends that the impugned

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judgment since it does not discuss or consider the above aspects is

fit to be set aside.

6. Per contra, the learned counsel for the respondents

placed reliance on the respective counter affidavits filed in the W.P.

of eligible class and above are received, then bids of one/two class

below enlisted contractors will not be considered. During the

technical evaluation, 8 bids from eligible or above class bidders

were received and therefore, the bid of the appellant being 2 class

below, was not considered. It is specifically contended relying on the

tender summary report produced as Exhibit R1(B), that some of the

firms including the appellant had neither uploaded nor submitted the

details in support of meeting the criteria of upgradation to the eligible

class, i.e. Class A. and hence the said firms including the appellant

were not considered eligible for opening the price bid ie., cover 2.

The learned counsel also placed reliance on the dictum laid down in

Silppi Constructions Contractors v. Union of India and another

[(2020) 16 SCC 489] wherein the Hon'ble Supreme Court had

summarised the principles concerning the scope of judicial review,

regarding interpretation of tender documents and also exemplified

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the legal position regarding powers of the competent authority.

7. We have heard both sides in detail and have considered

the contentions put forth. The principal question to be considered is

whether the learned Single Judge had erred in dismissing the W.P.

(C), overlooking the challenge against Exhibit P14 and concluding

that Exhibits P9 and P11 are not illegal. It would be relevant to

reproduce Notes 1, 2 and 9 of Appendix A notice of E tender

produced as Ext.P1.

"Note No.1

1. In case after opening of Cover -1, the number of MES

enlisted contractors of eligible class as well as un-enlisted

contractors, if any, fulfilling the other eligibility criteria given in

NIT is less than 7 (seven), applications in respect of MES

contractors one/two class below the eligible class shall also be

considered subject to fulfilment of other eligibility criteria given

in the NIT. Therefore MES contractors one/two class below

may also bid for this tender. Such contractors (contractors of

one/two class below the eligible class) shall not be considered

in case their present residual work in hand is more than FIVE

TIMES their present tendering limit. However, in case such

contractors fulfil the criteria of upgradation to the stipulated

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eligible class based on past experience of completed work

(individual work experience and/or average annual turn over, as

applicable) and financial soundness (solvency/financial

soundness and working capital), the ceiling of present residual

work will not apply and they will be considered for issue of

tender. Such bidders shall upload in their Cover - 1 bid details

related to residual work in hand showing names of work,

names of Accepting Officers, Contract amounts, dates of

commencement and completion (stipulated) and progress as

on bid submission date. Such contractors, if claim to fulfil the

criteria of upgradation shall also upload the requisite

information/documents in support of upgradation. These

details shall be verified by the Tender issuing authority from

concerned formations in case bids of such contractors are

considered for evaluation. (emphasis supplied)

Note No.2

2. In case after opening of Cover -1, the number of MES

enlisted contractors of eligible class as well as un-enlisted

contractors, if any, fulfilling the other eligibility criteria given in

NIT are 07 (Seven) or more, applications of only those one/two

class below the eligible class bidders shall be considered, who

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have previously completed similar works satisfactorily and are

meeting the criteria of upgradation in respect of past

experience of completed works (individual work experience

and/or average annual turnover as applicable) and financial

soundness (solvency/financial soundness and working capital)

as per details given in Manual on Contracts. Therefore, such

contractors shall upload the requisite information/documents in

the Cover - 1. (emphasis supplied)

9. After opening of Cover 1 and during its technical evaluation,

in case any deficiency is noticed in the documents required to

be uploaded by the tenderers as per NIT, a communication in

the form of e-mail/SMS/Speed post etc. shall be sent to the

contractor to rectify the deficiency within a period of seven days

from the date of communication failing which their financial bid

(Cover 2) shall not be opened and contractor shall not have any

claim on the same." (emphasis supplied)

A perusal of Exhibit P9 tender evaluation summary of the tender in

question reveals that the above mandates have been followed by

the official respondents and that there was no arbitrariness in their

action as alleged by the appellant. 11 bidders participated in the

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tender, and 8 of them are listed in Class A and above contractors of

MES, and thereby, the bidders below Class A were ineligible to

participate. Further, it is a specific requirement in Note 2 of Exhibit

P1 viz., Appendix A to the notice of e-tender, that the contractor

shall upload the requisite information/ documents in cover 1. The

mandates of Note 9 reproduced above in this respect are very clear

and specific. Admittedly, the appellant has not uploaded documents

for upgradation to the eligible class ie., A class. On the said very

count itself, the contention put forth by the appellant loses its sheen.

Further, in Silppi Constructions Contractors (supra), it has been

laid down by the Hon'ble Supreme Court that the need for

overwhelming public interest to justify judicial intervention in matters

of contract involving the state instrumentalities must be clear, and

restraint and caution should be exercised by courts while

considering the same. It has been held that the Courts should give

way to the opinions of the experts unless the decision is arbitrary or

unreasonable, and the Courts do not sit as an appellate court over

the authority's decision and must realise that the authority floating

the tender is the best Judge of its requirements. The court's

interference thus should be minimal. It is also trite that if two

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interpretations are possible, then the interpretation of the author

must be accepted. The appellant in the case at hand has not been

able to show arbitrariness, irrationality, bias, malafides or perversity

in the decisions taken. The learned Single Judge had thus rightly

concluded that this Court cannot declare the appellant as the

person qualified when the tendering authority had found him

ineligible.