Research › Search › Judgment

Kerala High Court · body

2000 DIGILAW 165 (KER)

Guruji Constructions v. TRIDA

2000-03-14

A.R.LAKSHMANAN, D.SREEDEVI

body2000
JUDGMENT Dr. A.R. Lakshmanan, J. 1. Heard Mr. P.B. Sahasranaman for the appellant, Mr.Pirappancode V.S. Sudheer for first respondent, Mr.T.L. Ananthasivan for respondents 2 to 6 and Mr.Alexander Thomas, Govt. Pleader for 7th respondent. 2. The petitioner in the original petition is the appellant. The first respondent - the Thiruvananthapuram Development Authority (TRIDA in short) - invited tenders from professional consultancy groups for completing the remaining blocks of the Palayam Project. TRIDA , with a view to develop Palayam area, had formulated a detailed Town Planning Scheme and the Government had, by G.O.(MS) No. 199/78/LA & SWD dated 7-8-1978, sanctioned the said Scheme. Palayam Market Redevelopment is one of the major projects envisaged in the said Scheme and TRIDA is entrusted with the responsibility for implementation of the said Project. The Scheme contemplates the total re-development of Palayam Market and its precincts with a view to ensure basic amenities to all and to regulate the orderly growth of the area in accordance with the principles of Town Planning. For implementing the Palayam Market development, the TRIDA had appointed Sri.C.M. Correa and Associates, Bombay as Architectural Consultant with the approval of the Government. He had prepared the Architecture/Structural designs for one block, viz., 'B' Block and the same was completed and commissioned by TRIDA in 1997. He has resigned from the project and his resignation was accepted by TRIDA on 17-6-1996. On account of his resignation, the Authority required the services of Architectural Consultants for completing the remaining blocks of the Palayam Project. In the above circumstances, the TRIDA had invited offers from professional consultancy groups with inhouse services of Architects, Planners, Engineers and Project Planners to send technical proposals showing details of the firm, experience, financial proposals showing expected consultancy charges, etc., before 4.00 p.m. on 24-12-1996. A true copy of the notice inviting consultants for the Palayam Urban Renewal Project is produced and marked as Exhibit R1(a), under which offers are invited from professional consultancy groups with inhouse services of Architects, Planners, etc. The notification was published in all leading daily newspapers and in response to the notice, ten consultants/Architectural groups offered their services for the Palayam Project. The list of consultants who had offered their services for the project is produced and marked as Ext.R1(b). 3. The notification was published in all leading daily newspapers and in response to the notice, ten consultants/Architectural groups offered their services for the Palayam Project. The list of consultants who had offered their services for the project is produced and marked as Ext.R1(b). 3. The Executive Committee of TRIDA at its meeting held on 28-1-1997 had constituted a sub committee with the following persons as members to evaluate the offers received from the consultants for selection of Architectural Consultant for the project:- 1. Chairman, TRIDA. 2. Secretary, TRIDA. 3. Sri. Laurie Baker, Architect. 4. Prof. Eugene Nazareth Pandale, Head of Architectural Department, TKM Engineering College, Kollam. 5. Sri. G. Sankar, Architect, Executive Committee Member, TRIDA. 6. Prof. T. Oommen, Architect, LBS Centre, Thiruvananthapuram. It was decided to convene a meeting of the Sub Committee on 12-5-1998 and notices were served on all of them, vide letter No.E1/939/98 dated 4-5-1998 by TRIDA (Ext.R1 (c)). The Sub Committee evaluated the offers received from the Architectural Consultants and six Architects were pre-qualified. A true copy of the list of consultants pre-qualified for the project is produced and marked as Exhibit R1(d). The appellant -Guruji Constructions and Consultants - and respondents 2 to 6 herein were pre-qualified. Thereafter a meeting of the pre-qualified Architectural Consultants and the members of the Sub Committee were held on 12-5-1998 to discuss the urban planning policy for Palayam area. They were instructed to prepare a competitive project proposal for the project based on specific criteria for its evaluation. In the meeting, the pre-qualified five firms - viz., respondents 2 to 6 - expressed their desire to work jointly as a consortium in the name and style "V5 Design Consortium". The said proposal was accepted by TRIDA. The appellant's firm - Guruji Construction and Consultants - requested TRIDA to permit them to draw up two separate proposals for the Palayam area, which was agreed to. The Sub Committee proposed to meet again on 29-6-1998. According to TRIDA, all Sub Committee members were informed by letter No.E1/ 939/98/TRIDA dated 22-6-1998 (Ext.R1(e) regarding the meeting to be held on 29-6-1998, whereas the appellant has submitted that two of the Sub Committee members, viz., Sri.Laurie Baker and Prof. Oommen, were not invited and they were not in the meeting. According to TRIDA, all Sub Committee members were informed by letter No.E1/ 939/98/TRIDA dated 22-6-1998 (Ext.R1(e) regarding the meeting to be held on 29-6-1998, whereas the appellant has submitted that two of the Sub Committee members, viz., Sri.Laurie Baker and Prof. Oommen, were not invited and they were not in the meeting. The Sub Committee considered the proposals prepared by the appellant's firm and firms of respondents 2 to 6, viz., "V5 Design Consortium" on 29-6-1998. The "V5 Design Consortium" presented one proposal and explained the scheme before the Committee. The appellant firm - Guruji Construction and Consultants - also presented two proposals. The Sub Committee after a comprehensive evaluation of different aspects, awarded marks as follows:- "(a) V5 Design Consortium, respondents 2 to 6 : 43/59 (b) Gururji Constructions Ist proposal : 7/59 IInd proposal : 20/59." Each group was ranked in the following manner based on merit: "(1) V5 Design Consotium : Rank No. I (2) Guruji Construction : Rank No. II". This was placed before the Executive Committee of TRIDA held on 29-6-1998. The Executive Committee examined the project proposals and accepted the recommendation of the Sub Committee and after detailed discussion, decided to select M/s.V5 Design Consortium as Architectural Consultants for the Palayam Project, which was also placed before the General Council of TRIDA met on 17-7-1998. The General Council also accepted the decision of the Executive Committee. Thereafter it was decided to send proposal to Government seeking sanction as envisaged under R.48(3) of the Kerala Development Authority Rules to appoint M/s.V5 Design Consortium as Consultant for the Palayam Project. 4. The Government of Kerala have also accorded sanction to TRIDA to appoint M/S.V5 Consortium as Architectural Consultant of TRIDA for Palayam Urban Renewal Scheme on payment of a consulting fee at 2% of the estimated cost in G.O.(Rt) No. 2807/99/LAD dated 25-9-1999 of the Local Administration (G) Department (Ext.R2(a)). 5. Aggrieved against the selection of M/s.V5 Design Consortium, the appellant has filed O.P.15935/1999 to quash Ext.P2 decision taken to recommend the name of "V5 Design Consortium", consisting of respondents 2 to 6, and for a mandamus directing respondent No. 1 - TRIDA - to reconsider the entire selection process by including Sri.Laurie Baker and Prof. Oommen, Architects, and to select from among the writ petitioner and respondents 2 to 6. Oommen, Architects, and to select from among the writ petitioner and respondents 2 to 6. It is submitted that the present committee which has selected M/s.V5 Design Consortium does not contain the two experts, viz., Sri.Laurie Baker and Prof. Oommen, two independent architects and that they were deliberately avoided while making the selection. It is submitted that the project was sanctioned in favour of respondents 2 to 6 for extraneous reasons and that the selection of M/s.V5 Design Consortium is arbitrary and mala fide. 6. A counter affidavit was filed on behalf of the TRIDA denying the allegations. Along with the counter affidavit, Ext.Rl(a) to Ext.R1(g) were filed. 7. The second respondent has filed a separate counter affidavit stating that the appellant - Guruji Constructions and Consultants - is not at all qualified to compete with the experienced architects and that no mala fides can be shown by the appellant in selecting respondents 2 to 6 for the undertaking of the projects. 8. The appellant filed a reply affidavit, stating that the appellant has submitted two proposals and one concept and that the marks said to be awarded as stated in para.9 of the counter affidavit were arbitrary and without any basis and there is no basis for fixing any elements for awarding marks and that the evaluation was done only to eliminate the appellant. 9. A learned single Judge of this court after going through the affidavits and the files came to the conclusion that there is no arbitrariness, bias or mala fides in awarding the work to M/S.V5 Design Consortium and there was fair play in the matter. Being aggrieved, the petitioner has filed the above Writ Appeal. 10. Mr.P.B. Sahasranaman placed before us the following main points to be considered in this appeal: "(1) Appellant has submitted one proposal. Two projects. The fact that the respondents 2 to 6 colluded and submitted one project is behind the back of this appellant. (ii) When the two projects submitted by this appellant and the one project submitted by the respondents 2 to 6 were considered two independent members Laurie Baker and Prof.Ummen were not in the meeting. They were not invited according to the appellant and they had not turned up according to the TRIDA. The records will reveal this fact. In fact their services were sought to have an expert advice. They were not invited according to the appellant and they had not turned up according to the TRIDA. The records will reveal this fact. In fact their services were sought to have an expert advice. (iii) There is no prescribed rule for quoting the consultants fee. Petitioner has quoted one per cent for architectural design, 2% for architectural design and structural design, 2.5% for architectural design, structural design plus electrical consultancy and 0.5% for other services like sanitary and water supply design, fire consultancy, etc. Whereas the respondents 2 and 3 have quoted 3.5% of the actual cost, (of what?). The fourth and fifth respondent have quoted 1.5% of the actual cost (of what?). The sixth respondent has quoted 1.25% of the project cost. The TRIDA has not stated the basis for quoting the consultation fee. This shows the arbitrariness in the action. The TRIDA has conveniently changed the terms "Estimated Cost", "Actual cost", "Tendered Cost", "Project Cost" to convenience of the so-called "V-5". This will amount to abuse of its powers. (iv) V-5 has no separate legal entity. The main reason stated for accepting the offer of the respondents 2 to 6 is that it can avail the expertise of 5 pre-qualified architectural consultants jointly. It is not the number of architects which is the deciding factor. The quality. If this appellant has told that the number that counts, he ought to have submitted more numbers. (v) The appellant is agreeable to reduce the consultant fee. But was not consulted before rejecting his tender". 11. The learned counsel for TRIDA answered all the above questions with reference to the records and counter affidavits filed. The learned counsel for the respondents 2 to 6 has also explained to the court the circumstances under which respondents 2 to 6 - M/s.V5 Design Consortium - was selected. It is submitted that only after verifying thoroughly the competence, experience and the expertise of respondents 2 to 6 the first respondent has accepted the proposal and finally entrusted the work to V5 Design Consortium as architectural consultants for the Palayam Project. It is further submitted that the first respondent had invited offers from professional consultancy groups with inhouse services of Architects, Planners, Engineers and Project Planners to send technical proposals showing details of the firm, experience, financial proposals showing expected consultancy charges, etc. It is further submitted that the first respondent had invited offers from professional consultancy groups with inhouse services of Architects, Planners, Engineers and Project Planners to send technical proposals showing details of the firm, experience, financial proposals showing expected consultancy charges, etc. and in view of the said notification, respondents 2 to 6 have applied and they were pre-qualified along with the appellant. In the meeting, pre-qualified five firms - viz., respondents 2 to 6 -expressed their desire to work jointly as consortium in the name and style "V5 Design Consortium". It is submitted that the object of such a consortium by respondents 2 to 6 was to pool together the expertise of the firms which would produce an excellent design solution and the above decision to form a consortium by respondents 2 to 6 was made known to the TRIDA in the presence of the appellant firm, which did not object for such a consortium by respondents 2 to 6. Hence, Mr.T.L. Ananthasivan submitted that the allegation of the appellant that respondents 2 to 6 had colluded themselves and constituted a consortium - V5 Design Consortium - behind the back of the appellant is untrue and against the facts. It is further argued that a deed of partnership was executed among respondents 2 to 6 on 5-6-1998 and the same was produced before TRIDA for their verification and in view of the qualifications of respondents 2 to 6, TRIDA, after a detailed study on various items, requested for sanction of the Government of Kerala for the appointment of V5 Design Consortium as Architectural Consultants of TRIDA for Palayam Urban Renewal Scheme and the Government of Kerala has ordered the appointment of V5 Design Consortium for the completion of the projects, by Government order dated 25-9-1999, marked as Ext.R2(a). Mr. Ananthasivan further submitted that the selection of V5 Design Consortium as Architectural Consultants was based purely on merit and performance and they are the most competent persons to do the job entrusted by TRIDA and the appellant cannot come near to them in professional competence. Concluding his argument, Mr.Ananthasivan submitted that none of the contentions of the appellant are tenable and in the light of the facts and arguments submitted, the appeal is liable to be dismissed. 12. Concluding his argument, Mr.Ananthasivan submitted that none of the contentions of the appellant are tenable and in the light of the facts and arguments submitted, the appeal is liable to be dismissed. 12. Mr.Pirappancode V.S. Sudheer, learned counsel appearing for the TRIDA, invited our attention to the detailed counter affidavit filed in the Original Petition and also Exts.R1 (a) to R1 (g). He submitted that the pre-qualified architects were duly selected and that the Sub Committee after evaluation of each of the project proposals, prepared the evaluation report showing the mark scored by each firm. It is further submitted that the selection was strictly based on specific criteria and the fact that one of the members may be batch mate or collegemate had not made any impact or influence whatsoever on the selection and that the mode of selection followed was highly transparent and that there was no occasion for the Authority to think that the selection had any influence merely because of the fact that a committee member and a selected consultant happen to pass out from the same Engineering College. 13. In regard to the submission made by Mr. Sahasranaman that the two independent members- Sri. Laurie Baker and Prof.Oommen - were not invited for the meeting and the decision taken by the Committee in their absence is illegal and arbitrary, it is submitted by Mr.Pirappancode V.S.Sudheer that Sri.Laurie Baker and Prof.Oommen were informed in advance to attend the meeting and they could not attend the meeting because of their personal inconvenience and not deliberately as alleged by the appellant. It is further submitted that by accepting the services of respondents 2 to 6, TRIDA is now in a position to avail and utilise the expertise of five Architects jointly and that TRIDA had not done anything illegal, more so when each of the Architect was duly pre-qualified for the project. We see much force and merit in the above submission. It is seen from the records that the Sub Committee constituted for the purpose discussed the joining of respondents 2 to 6 as one consortium and this matter was discussed in the meeting, wherein the appellant's Town Planner was also present, who had not made any objection to the proposal. In the above circumstances, we are of the opinion that the appellant cannot complain against the constitution of V5 Design Consortium. In the above circumstances, we are of the opinion that the appellant cannot complain against the constitution of V5 Design Consortium. The Report of the Sub Committee and the decision of the Executive Committee dated 29-6-1998 was placed before the General Council meeting held on 17-7-1998 and the Committee decided to send the proposal to Government for sanction to appoint M/s.V5 Design Consortium. Mr. Sudheer has also reiterated that notices were sent to the two experts - Sri.Laurie Baker and Prof.Oommen - who could not attend the meeting because of their personal inconvenience and majority of the members attended the meeting and the Sub Committee evaluated the different aspects comprehentially and considered each criteria of the Design Policy independently and marks were awarded for each item by each member separately. It is stated that the appellant's firm secured 7/59 for their proposal No.l and secured 20/ 59 for their proposal No.2, whereas the V5 Design Consortium, consisting of respondents 2 to 6, secured 43/59 marks. The fee quoted by the appellant is also found on the higher side when compared to the fee quoted by V5 Design Consortium. 14. A perusal of the pleadings and the records placed before us would only show that there was no ulterior motive in the selection of V5 Design Consortium as Architectural Consultants. The selection was based purely on the basis of merit and performance. The Government also accorded its sanction for the appointment of M/s.V5 Design Consortium as Architectural Consultants of Palayam Project as they are found competent and that their consultancy fee is also competitive and reasonable. A submission was also made by the counsel for TRIDA that if the appellant's firm was selected, TRIDA have to pay more amount as consultation fee since their claim is 3% of the cost of the project and that the Design proposals of the firm is also found much inferior. 15. There is no reason to disbelieve the statement made by the counsel for TRIDA that all the Sub Committee members were informed of the meeting and due to personal reasons and inconvenience, two of them could not be present in the meeting. We are of the opinion that the absence of two members, because of their personal inconvenience, cannot be alleged as a ground for disqualifying the consultants selected in accordance with the procedure. We are of the opinion that the absence of two members, because of their personal inconvenience, cannot be alleged as a ground for disqualifying the consultants selected in accordance with the procedure. The other allegation that some Sub Committee members had some intimacy with respondents 2 to 6 is also not established. 16. Mr.Sahasranaman relied on the decision reported in Tata Cellular v. Union of India, AIR 1996 SC 11 , and submitted that the decision making authority has exceeded its powers by accepting the tender made jointly by respondents 2 to 6 and they had committed breach of natural justice by accepting the offer of respondents 2 to 6 behind the back of the appellant. It is further submitted that the TRIDA has abused its powers by allowing the respondents 2 to 6 to collude and their tenders were accepted. 17. A perusal of the entire pleadings and the statement made in the counter affidavit would clearly show that TRIDA has not exercised its authority arbitrarily as alleged by the appellant. A perusal of the documents and the Exhibits placed before us would only show that the TRIDA has followed the procedure and strict adherence to the same has been made. The decision of the Sub Committee was placed before the Executive Committee of TRIDA, WHICH examined the project proposals and accepted the recommendation of the Sub Committee and after detailed discussions, it was decided to select M/s.V5 Design Consortium as Architectural Consultants, which was again placed before the General Council of TRIDA, which also accepted the. decision of the Executive Committee. Above all, the Government also has accorded its sanction to the proposal as envisaged under R.48 of the Kerala Development Authority Rules, 1984. The allegation that the TRIDA has committed breach of natural justice by accepting the proposal of respondents 2 to 6 behind the back of the appellant has, in our opinion, no basis. As already noticed, in a meeting held on 12-5-1998 of the Sub Committee, the pre-qualified five firms, viz., respondents 2 to 6, expressed their desire to work jointly as a consortium in the name and style "V5 Design Consortium", which proposal was accepted by TRIDA since TRIDA can avail the expertise of five pre-qualified architectural consultants jointly. As already noticed, in a meeting held on 12-5-1998 of the Sub Committee, the pre-qualified five firms, viz., respondents 2 to 6, expressed their desire to work jointly as a consortium in the name and style "V5 Design Consortium", which proposal was accepted by TRIDA since TRIDA can avail the expertise of five pre-qualified architectural consultants jointly. There is nothing wrong to accept the proposal of respondents 2 to 6 to work jointly as a consortium which, in our opinion, would be in the interest of the TRIDA. By accepting the same, the TRIDA has done anything illegal more so when each of the Architect was duly pre-qualified for the project. This apart, the Sub Committee constituted for the purpose discussed the joining of respondents 2 to 6 as one consortium and this matter was discussed in the meeting wherein the appellant's Town Planner was also present and he had made any objection to the proposal Therefore, the appellant, in our opinion, cannot object or complain against the decision taken by TRIDA by permitting the respondents 2 to 6 to constitute a consortium, under the name and style "V5 Design Consortium". 18. The Supreme Court in the judgment reported in Raunaq International Ltd. v. I.V.R. Construction Ltd., AIR 1999 SC 393 , held that the court must be satisfied that there is some element of public interest involved in entertaining a writ petition filed in the High Court challenging the award of a contract by a public authority. In this case, the dispute is purely between the appellant and respondents 2 to 6, who are also tenderers. In our view, there is no public interest in the litigation. As pointed out by the Supreme Court, a mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. The facts and circumstances of the case on hand would disclose that there is no substantial amount of public interest is involved in this case. The dispute is only between two rival tenderers. We are satisfied ourselves about the bona fide of the respondents 2 to 6 and the award of contract by the respondent No.l. 19. The facts and circumstances of the case on hand would disclose that there is no substantial amount of public interest is involved in this case. The dispute is only between two rival tenderers. We are satisfied ourselves about the bona fide of the respondents 2 to 6 and the award of contract by the respondent No.l. 19. The Supreme Court in a very recent judgment reported in Air India Ltd. v. Cochin International Airport Ltd., JT 2000 (1) SC 481, held in para.7 as follows: