EXECUTIVE ENGINEER Vs. K. SUBRAMANIAN

JUDGEMENT

(1.) HEARD learned counsel for the appellants in both appeals and learned counsel appearing for the respondent-writ petitioner. Writ petition No.4118 of 2012 came to be filed by the respondent-writ petitioner against the appellants seeking following reliefs:-

(2.) IT is not in dispute that by virtue of Exts.P3 and P5, on earlier occasion though the writ petitioner was somewhat a successful tenderer was not able to get the tender in his favour so far as the work of replacement of old mosaic floors with new jointless vitrified tiles at four floors of CMFRI Head Quarters building at Kochi, Kerala.

(3.) SO far as coming to another appeal filed by the Superintendent Engineer in his personal capacity aggrieved by the observations made at paragraph 3 of the judgment of the learned Single Judge, the main contention of learned counsel for the appellant, Mr.Dinesh R Shenoy, is that when such condition was included in several tenders, there was no justification on the part of the writ petitioner to allege mala fides against the appellants as being an experienced contractor he was also aware of the fact that laying flooring or mosaic floors is part of building work as per CPWD Manual. His main ground of attack was with regard to the observations of the learned Single Judge at paragraph 3 of the judgment. According to him, even before he could be served with a notice, the observations as indicated at paragraph 3 of the judgment are not warranted. If only the appellant was given an opportunity to controvert the averments in the writ petition, the material indicating the bona fides of the tender process would have been placed before the Court. Therefore none of the observations made against the appellants herein should be sustained as he was not heard before making such observations. As against these submissions of the two appellants, learned Senior Counsel Mr.Jayakumar contends that in understanding of the writ petitioner, "similar work means "building work" only" was rightly understood as construction of a building therefor as he did not have any special experience in said work, he did not submit his tender and he was all along under a bona fide belief that intentionally with mala fides to exclude his participation in the tender process, such a condition was imposed by the 2nd and 3rd respondents before the learned Single Judge, which is evident by the earlier litigation pending between the parties in W.P.(c).No.34416/2011. When learned counsel was asked why there was no insistence for interim direction to receive the tender of the writ petitioner, the reply was that the writ petition came to be disposed of on merits, therefore no such prayer was sought. With these submissions at our command when we look in to the records, especially the judgment of the learned Single Judge, paragraph 3 refers to the allegations made against the Superintendent Engineer in his personal capacity on account of pendency of another litigation where the very same writ petitioner has sought for a direction for payment of amounts due from CPWD.