Vasudevan.K.M vs Chief Engineer(Naval Works ) Kochi
2025 Latest Caselaw 1329 Ker

Kerala High Court

Vasudevan.K.M vs Chief Engineer(Naval Works ) Kochi on 9 June, 2025

Author: N. Nagaresh

Bench: N.Nagaresh

                                               2025:KER:39435

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

              THE HONOURABLE MR.JUSTICE N.NAGARESH

  MONDAY, THE 9TH DAY OF JUNE 2025 / 19TH JYAISHTA, 1947

                    WP(C) NO. 23477 OF 2024

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.
         SRI.M.V.AMARESAN
         SRI.S.S.ARAVIND


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
                                             2025:KER:39435
W.P.(C) No.23477/2024
                             :2:

 *ADDL.3 M/S.CREATIVE BUILDERS,
         CREATIVE TOWER, EROOR P.O.,
         VYTTILA- 682 306,
         REPRESENTED BY ITS MANAGING PARTNER,
         VISHNU T.P.

           *(ADDITIONAL 3RD RESPONDENT IS IMPLEADED AS PER
           ORDER DATED 22.05.2025 IN IA NO.1/2025 IN WP(C)
           NO.23477/2024.)


           BY ADVS.
           SRI.P.R.AJITH KUMAR, CGC
           SRI.DEEPU THANKAN
           SMT.UMMUL FIDA
           SMT.LAKSHMI SREEDHAR
           SMT.LEKSHMI P. NAIR
           SMT.VINEETHA BOSE
           SMT.CINDIA S.
           SMT.GAYATHRI G.
           SMT.O.M.SHALINA, DSGI


     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 02.06.2025, THE COURT ON 09.06.2025 DELIVERED THE
FOLLOWING:
                                                                     2025:KER:39435
W.P.(C) No.23477/2024
                                          :3:




                               N. NAGARESH, J.

           `````````````````````````````````````````````````````````````
                       W.P.(C) No.23477 of 2024

              `````````````````````````````````````````````````````````````
                     Dated this the 9th day of June, 2025


                                JUDGMENT

~~~~~~~~~

Petitioner, who is a C Class Contractor

enlisted under the Chief Engineer, Southern Naval Command,

Pune, is before this Court seeking to quash Exts.P9 and P11

and to declare that the petitioner is eligible to submit his bid in

response to Ext.P6 re-tender issued pursuant to Ext.P1.

2. The petitioner states that the 1st respondent-

Chief Engineer (Naval Works, Kochi) invited tender for

"Completion of incomplete works for setting up single offices

accommodation as a part augmentation of infrastructure and 2025:KER:39435

facilities at INA, Ezhimala (Phase-II)" as per Ext.P1 notice of

tender. As the estimated cost of work is ₹6,10,00,000/-, only

Contractors having A Class and above registration were eligible

to bid. As INA, Ezhimala is a remote station, Contractors

one/two Class below the eligible Class were also permitted to

bid the tender as per Ext.P1. The petitioner submitted Ext.P2

bid. When technical bid was opened, only two participants

were found qualified. Price bid could not be opened due to

administrative reasons. Subsequently, the tender was

cancelled and Ext.P6 re-tender notification was issued.

3. The petitioner again submitted Ext.P7 bid.

There were more bids this time. The 1st respondent, as per

Ext.P9, rejected the petitioner's bid on the ground that number

of enlisted Contractors of eligible Class exceeds 7. The

petitioner states that Ext.P9 rejection is liable to be quashed.

The bid of a Contractor having MSME registration is liable to be

considered. The petitioner therefore filed Ext.P10 appeal 2025:KER:39435

before the 2nd respondent-Chief Engineer. The 2nd respondent

rejected the appeal as per Ext.P11. The petitioner states that

Exts.P9 and P11 are liable to be set aside.

4. The counsel for the petitioner argued that the

number of bids came responding to the second call followed by

Ext.P1 is fake. Without considering the number of bids, the

petitioner's bid is also liable to be considered. Treating Ext.P6

re-tender as continuation of the first call pursuant to Ext.P1, the

petitioner's bid ought to have been accepted. The act of

respondents in revoking the tender unilaterally is illegal and

without bona fide. The counsel for the petitioner relied on the

judgment of the Hon'ble Patna High Court in M.K. Enterprises,

Patna v. State of Bihar [2023 KHC OnLine 4139] and argued

that not providing opportunity to the petitioner before

cancellation of bid is violative of principles of natural justice.

Relying on the judgment of the Hon'ble Gauhati High Court in

G.B. Chaudhuri Holdings Private Limited (M/s.) v. Food 2025:KER:39435

Corporation of India and another [2019 KHC 4002], the

counsel for the petitioner argued that cancellation process of

first tender is vitiated by lack of transparency and fairness.

5. Counsel for the 3rd respondent entered

appearance and resisted the writ petition. The 3rd respondent

submitted that only Contractors enlisted with MES in Class A

and above are eligible to bid the work in question. As per Note

1 of Ext.P1 NIT, in case after opening the Cover 1, the number

of MES enlisted Contractors of eligible Class as well as

unenlisted Contractors is less than 7, then applications of MES

Contractors one/two Class below the eligible Class shall also be

considered.

6. Since there were 11 bidders who participated

in the tender and 8 of them are enlisted in Class A and above,

bidders below the Class A are ineligible to participate. The

counsel for the 3rd respondent relied on the judgment of the

Hon'ble Apex Court in Afcons Infrastructure Limited v.

2025:KER:39435

Nagpur Metro Rail Corporation Limited and another [(2016)

16 SCC 818] and argued that unless the threshold of malafides,

intention to favour someone or arbitrariness, irrationality or

perversity exists, constitutional courts shall not interfere in the

decision making process or the decision of the authorities.

7. Respondents 1 and 2 also filed counter

affidavit. In respect of the first bid, there were two Firms eligible

for consideration. After opening the technical bid but before

opening the price bid, the defaulted Contractor filed a writ

petition before this Court against cancellation of the contract. In

W.P.(C) No.27285/2023, this Court passed an interim order

directing to maintain status quo. In the meanwhile, one of the

bidders intimated that they were not in a position to extend the

validity of bid. In such circumstances, re-tender was resorted

to.

8. Thereafter, the tender was republished on

05.02.2024. The Technical bid (Cover 1) was opened.

2025:KER:39435

Eleven bidders had submitted their bids. More than 7 Class A

bidders were found qualified to make the bid. Therefore, the

bids of one/two Class below enlisted Contractors were not

considered. The bid of the petitioner was therefore not

entertained. In the facts and circumstances, the allegations

made in the writ petition are wrong and unfounded. The

petitioner is not entitled to any reliefs, urged the 1st respondent.

9. I have heard the learned counsel for the

petitioner, the learned Central Government Counsel

representing respondents 1 and 2 and the learned counsel

appearing for the 3rd respondent.

10. The petitioner responded to Ext.P1 notice of

tender. Clause 8 of Appendix A to Ext.P1 mandated that

Contractor shall be listed with MES in Class A and above. Note

1 below the Appendix stated that in case after opening of Cover

1, the number of MES enlisted Contractors of eligible Class as

well as unlisted Contractors, if any, fulfilling the other eligibility 2025:KER:39435

criteria given in NIT is less than 7, applications in respect of

MES Contractors one/two Class below the eligible Class shall

also be considered subject to fulfillment of other eligibility

criteria given in the NIT.

11. In response to Ext.P1, only two persons

submitted bids. As there were less than 7 Class A Contractors

who bid, the bid of the petitioner could have been considered.

However, a defaulted Contractor filed W.P.(C) No.27285/2023

before this Court and this Court passed an interim order and

directed to maintain status quo on risk and cost tender.

Therefore, the respondents could not open the price bid. The

two bidders were requested for extension of validity of their

offer. Though the petitioner submitted willingness, the other

bidder did not agree to extend the validity of the bid.

Consequently, there remained only one bid.

12. In the circumstances, respondents 1 and 2

re-published the tender. In the subsequent tender, there were 2025:KER:39435

11 bidders. Out of the 11 bidders, only 3 bidders were found

ineligible. As there were 7 bidders of the eligible Class A, the

petitioner's bid could not have been considered as the petitioner

is only a Class-C Contractor. It is in such circumstances that

respondents 1 and 2 did not consider the bid of the petitioner.

13. In the afore circumstances, I do not find any

illegality in Exts.P9 or P11. Judicial review in the matter of

tenders is confined to issues as to whether any illegality,

irrationality or procedural impropriety committed by the decision

making authority and to prevent arbitrariness and favouritism.

14. The rejection of the petitioner's tender as per

Ext.P9 is because he failed to produce document to establish

eligibility under Class A. As there were 8 Class A Contractors,

who submitted bids, the petitioner's bid could not have been

entertained. The writ court is not a court of appeal and it

cannot review the decision of the tendering authority, but only

the decision making process. This Court cannot declare the 2025:KER:39435

petitioner as a person qualified, when the tendering authority

found him ineligible.

The writ petition is therefore without any merit and it is

hence dismissed.

Sd/-

N. NAGARESH, JUDGE aks/03.06.2025 2025:KER:39435

APPENDIX OF WP(C) 23477/2024

PETITIONER'S EXHIBITS:

Exhibit-P1 TRUE COPY OF THE NOTICE OF RE-TENDER DATED 24.07.2023 ISSUED BY THE 1ST RESPONDENT

Exhibit-P2 TRUE COPY OF APPLICATION DATED 25-09- 2023 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT

Exhibit-P3 TRUE COPY OF THE TECHNICAL BID OPENING SUMMARY PREPARED ON OPENING TECHNICAL BID ON 12-10-2023 Exhibit-P4 TRUE COPY OF REQUEST DATED 24-11-2023 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER Exhibit-P5 TRUE COPY OF CONCURRENCE DATED 07-12- 2023 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT Exhibit-P6 TRUE COPY OF RETENDER ISSUED ON 05-02-

Exhibit-P7 TRUE COPY OF APPLICATION DATED 21-02- 2024 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT Exhibit-P8 TRUE COPY OF WRITTEN COMPLAINT DATED 29.02.2024 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT Exhibit -P9 TRUE COPY OF LETTER DATED 27.03.2024 REJECTING THE PETITIONER'S BID ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER Exhibit-P10 TRUE COPY OF THE APPEAL AS PER APPEAL LETTER NO. MT/CENWKCH/101/03 DATED 02.04.2024 PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT Exhibit-P11 TRUE COPY OF ORDER BEARING NO.

800001/GEN KOCHI/550/E8 DATED 27.06.2024 ISSUED BY THE 2ND RESPONDENT IN EXHIBIT P10 2025:KER:39435

Exhibit-P12 TRUE COPY OF THE UDYAM REGISTERING CERTIFICATE BEARING NO.UDYAM-KL-04-

0006560 DATED 20-08-2021

RESPONDENTS' EXHIBITS:

EXHIBIT R1(A) True copy of the relevant pages of the Military Engineer Services Notice of Tender dated 24-07-2023 Exhibit R1(B) True copy of the Tender Summary Report dated 27-03-2024 Annexure R3-A TRUE COPY OF THE FINANCIAL BID OPENING SUMMERY WITH RESPECT OF THE TENDER FOR THE COMPLETION OF INCOMPLETE WORKS FOR SETTING UP SINGLE OFFICERS' ACCOMMODATION AS A PART OF AUGMENTATION OF INFRASTRUCTURE AND FACILITIES IN INA EZHIMALA (PHASE II) UPLOADED IN THE WEBSITE ON 28/03/2025 Annexure R3-B TRUE COPY OF THE LETTER OF THE 1ST RESPONDENT DATED 28/03/2025

PETITIONER'S EXHIBITS:

Exhibit-P13 TRUE COPY OF THE COMMUNICATION OF THE 1ST RESPONDENT DATED 28/03/2025. Exhibit P14 TRUE COPY OF THE TECHNICAL EVALUATION SUMMERY DATED 28/03/2025.