SPL INFRASTRUCTURE PVT. LTD v. THE STATE OF KERALA

W.P.(C) NO. 20863/2007APPENDIX PETITIONER'S EXHIBITS EXT.P1:- COPY OF THE TENDER NOTICE NO.1 D1.14/2004.EXT.P2:- COPY OF THE LETTER DT. 1.6.07 FROM THE 3RD RESPONDENT TOTHE PETITIONER.EXT.P3:- COPY OF THE LETTER DT. 5.6.07 FROM THE PETITIONER TO THERESPONDENTS.EXT.P4:- COPY OF THE LETTER DT. 7.6.07 FROM THE 3RD RESPONDENT TOTHE PETITIONER.EXT.P5:- COPY OF THE LETTER DT. 12.6.07 FROM THE PETITIONER TO THE3RD RESPONDENT WITH COPY TO 2ND RESPONDENT.EXT.P6:- COPY OF THE RELEVANT PORTION OF THE STANDARD BIDDINGDOCUMENT OF THE MINISTRY OF SURFACE TRANSPORT.EXT.P7:- COPY OF THE ADVOCATES' NOTICE DT. 2.7.07 TO THE 3RDRESPONDENT AND OTHERS AND OTHERS ALONGWITH POSTAL RECEIPTS.EXT.P8:- COPY OF THE STANDARD CONDITIONS OF CONTRACT OF THETAMIL NADU ROAD SECTOR PROJECT.EXT.R3(a):- COPY OF THE CERTIFICATE ISSUED BY THE DIVISIONALENGINEER, THIRUVARUR DT. 13.7.06.EXT.R3(b):- COPY OF THE CONFIRMATION LETTER FOR THE WORKEXPERIENCE CERTIFICATE FURNISHED BY SRI.E.K.K. MUHAMMED DT.11.4.07.E.XT.R3(c):- COPY OF THE LETTER SENT BY THE CHIEF ENGINEER DT.19.6.07.EXT.R3(d):- COPY OF THE AGREEMENT DT. 1.9.04.EXT.R2(d):- COPY OF THE AGREEMENT DT. 17.3.04.EXT.R3(f):- COPY OF THE SPECIAL POWER OF ATTORNEY EXECUTED BY THEC.M.D. OF AMAR CONSTRUCTIONS DT. 31.12.03.EXT.R3(g):- COPY OF THE LETTER DT. 7.4.05.tss W.P.(C) NO.20863/2007EXT.R3(g)1:- COPY OF THE LETTER DT. 7.4.06.EXT.R4(a):- COPY OF THE LETTER NO.E2.1174/06 DT. 7.6.07 FROMSUPERINTENDING ENGINEER , NH CENTRAL CIRCLE, KOCHI VYTTILA.EXT.R4(b):- COPY OF THE LETTER DT. 12.6.07 ISSUED BY THE 4THRESPONDENT TO SUPERINTENDING ENGINEER , NH CENTRAL CIRCLE ,KOCHI VYTTILA.EXT.R4(c):- COPY OF THE LETTER NO.E2.1174/06 DT. 4.7.07 FROMSUPERINTENDING ENGINEER , NH CENTRAL CIRCLE, KOCHI , VYTTILA.EXT.R4(d):- COPY OF THE LETTER NO.E2.1174/06 DT. 11.7.07 FROMSUPERINTENDING ENGINEER , NH CENTRAL CIRCLE, KOCHI, VYTTILA/TRUE COPY/P.A. TO JUDGEtss ANTONY DOMINIC, J.= = = = = = = = = = = = = = = =W.P.(C) No. 20863 OF 2007 H= = = = = = = = = = = = = = = =Dated this the 26th September, 2007J U D G M E N TThe question that arises for consideration is whether thedecision of respondents 1 to 3 to pre-qualify the additional 4threspondent for the work tendered by Ext.P1 is legal or not?2. The 3rd respondent issued Ext.P1 Notice Inviting Tenderfor the work of Widening and Strengthening of the straight roadfrom Vadakkanchery - Mangalam Junction to Govindapuramunder Inter-State Connectivity Scheme. The tender was invitedin two sealed covers, one for technical offer and the other forfinancial offer. To pre-qualify for the award of contract, thetenderer will have to satisfy the criteria laid down in that behalf.Among others, it was specified that the bidder should havecompleted work of the nature specified as a prime contractor oras a nominated sub contractor. Tender was submitted by thepetitioner and Chief Engineer’s Tender Committee evaluated thetechnical bids on 13.03.2007 and thereafter Ext.P2 was issued tothe pre-qualified tenderers requiring them to attend the office ofthe 3rd respondent on 04.06.2007 for opening the financial bid.Petitioner attended the price bid opening when it was found thatthe price bid submitted by the additional 4th respondent was the W.P.(C) No. 20863 OF 2007-2-lowest. 3. Petitioner came to know that the additional 4threspondent obtained prequalification based on a false certificateissued by the Divisional Engineer, Tamil Nadu Road SectorProject, Highways Department, Government of Tamil Nadu.Therefore, petitioner addressed respondents 1 to 3 by Ext.P3letter stating that the certificate furnished by the additional 4threspondent was in respect of a work executed and completed byM/s. Amar Construction Company and not the additional 4threspondent. On this basis, the respondents were requested toverify the correctness of the claim of the 4th respondent from theTamil Nadu authorities. Response came from the 3rd respondentby Ext.P4 that the Tamil Nadu authority had confirmed thecertificate issued by him and requested the petitioner to sent anyreliable proof/documents which may expose the falsehoodsuspected by it. However, the 3rd respondent stated that theywere checking up the matter with the authorities based on theinformation from the petitioner. The petitioner replied by Ext.P5stating that it will take time to obtain documents and requestedthat the veracity of the claim may be verified from the ProjectDirector of the Tamil Nadu State. In spite of all these, since thepetitioner apprehended that the work was going to awarded tothe 4th respondent, Ext.P4 lawyer notice was issued to therespondents and thereafter this writ petition was filed praying forquashing the prequalification of the 4th respondent and requiringthem not to issue selection notice to him for the work. Petitioner W.P.(C) No. 20863 OF 2007-3-also sought a declaration that he was the lowest tenderer. 4. Respondents 3 and 4 have filed counter affidavits. The 3rd respondent would state that Ext.R3(a) certificate was issued bythe Divisional Engineer, Highways of the Tamil Nadu governmentto the effect that the 4th respondent had executed the work of“Enhanced Periodical Maintenance Of Government Roads inNagapatinam and Thiruvarur Districts of Tamil Nadu PackageNo.MC-4(a) Tharangambady-Myladumthurai Road km.11/2 toKm. 28/6 (b) Tanjavur – Mannargudy – Tiruthuraipoondi –Vadaranyam – Kodiyakkarai Road Km.15/7 to Km. 30/6 (c)Nagore – Vettar Road KM.15/0 to Km.23/0 AgreementNo.13/2004-2005 dated 1.9.2004” Total value of the work wasRs.1849.00 lakhs. The stipulated dated of completion of thework was 30.4.2006. The actual completion of work was13.4.2006.” Soon after the prequalification of the tenderers, acomplaint was received and letters were issued to the officerswho had issued experience certificates to confirm the same.According to the 3rd respondent in respect of the additional 4threspondent Ext.R3(b) confirmation letter was received. It isstated that it was thereafter that price bids were opened on04.06.2007 when the 4th respondent’s offer of Rs.11.68 croreswas found to be the lowest, and the offer of the petitioner was forRs.12.91 crores. It is submitted that by accepting the bidsubmitted by the 4th respondent, the respondents weresaving1.23 crores for exchequer. 5. The counter affidavit further proceeds to state that on W.P.(C) No. 20863 OF 2007-4-receipt of Ext.P3 from the petitioner, a letter was sent to theProject Director for confirmation of the contents of the certificateproduced by the 4th respondent and that in reply Ext.R3(c) wasreceived clarifying that; “the contractor for the contract MC-4, M/s. AmarConstructions Company has given power of attorney toE.K.K. Muhammed, Kerala to act for and on behalf of thecompany. This is purely an internal arrangement madebetween the contractor and the Power of Attorney Holder.The work was carried out by the power of Attorney holderon behalf of the contractor”. 6. It is also stated that in reply to the explanation soughtfrom the 4th respondent he had produced Ext.R3(d) agreementbetween him and the Project Director, Tamil Nadu Road SectorProject, in his capacity as Power of Attorney Holder of AmarConstructions, Ext.R3(e) agreement between the 4th respondentand Amar Constructions, Ext. R3(f) Special Power of Attorneyexecuted by the CMD of Amar Constructions in favour of the 4threspondent and Ext.R3(g) and Ext.R3(g)(1) TDS Certificates.Based on these documents, it is averred that the Chief Engineeranalysed the complaint of the petitioner and was convinced thatthe 4th respondent had executed all aspects of the work and thatthe experience certificate produced by him is genuine. It isstated that the Chief Engineer approved the lowest bid submittedby the 4th respondent on 20.06.2007 and issued selection noticeto him on 04.07.2007 asking him to execute the agreement. 7. The 4th respondent in his counter affidavit swears by hiseligibility to be pre-qualified. He submits that by Ext.R4(a) W.P.(C) No. 20863 OF 2007-5-clarification was sought and that was furnished by Ext.R4(b) towhich Exts.R3(d), (e), (f) and (g) were enclosed. In paragraph 9of the affidavit he submits that as power of attorney holder ofAmar Constructions Company he signed agreement with TamilNadu authorities and that the said work was executed by him asa sub contractor of Amar Construction Company and that it wastherefore that Ext.R3(a) experience certificate was issued to himfor the aforesaid work. He has also produced Exts.R4(c) and (d)letters of the 3rd respondent informing acceptance of the tenderand requiring him to execute the agreement. Like the 3rdrespondent, the 4th respondent also would plead that the decisionmaking process is not invalid on any grounds and that publicinterest deserves acceptance of his tender in as much as the offermade by him was the lowest and since the work is to be executedon a time bound basis or else the financial grant from the CentralGovernment itself would lapse. 8. The petitioner has filed a reply affidavit contradictingeach of the contentions in the counter affidavits and producingExt.P8, the standard conditions of contract of Tamil Nadu RoadSector Project in terms of which a contractor could subcontractonly with the approval of the Engineer and that the whole of theworks could not be subcontracted. He would reiterate hiscontentions that the 4th respondent did not satisfy the conditionsin Ext.P1 Notice Inviting Tender and therefore, he could not havebeen pre-qualified. 9. During arguments the counsel for the writ petitioner W.P.(C) No. 20863 OF 2007-6-contended that the 4th respondent was not eligible to be pre-qualified. On the other hand the learned Government Pleader whoappeared on behalf of respondents 1 to 3 and the Learned theSenior Counsel appearing for the 4th respondent submitted thatthe 4th respondent satisfied the tender conditions and thereforethe decision to pre-qualify him did not call for interference. Itwas also submitted that the court was concerned only with thedecision making process and not with the decision itself.According to the counsel on the materials available before it, thetender committee has arrived at the decision which was notvitiated by arbitrariness, malafides or illegalities. According tothem this court was not sitting in appeal over the decision of thetender committee and that public interest will suffer if the tendersubmitted by the 4th respondent is rejected and that a decisioncould be interfered with only if public interest warrants it and noton the making of a legal point. 10. From the pleadings in this case and the arguments thatwere raised on either side, the only issue that arises is whetherthe decision of the tender committee to pre-qualify the 4threspondent is one calling for interference under Article 226 of theConstitution of India. 11. Before proceeding further, clause 1.9 c of Ext.P1 NoticeInviting Tender needs to be seen and is extracted below:“Each bidder in the last 5 years should have satisfactorilycompleted (not less than 90% of contract value) as aprime contractor (or as a nominated sub contractor wherethe sub contract involve execution of all main items of W.P.(C) No. 20863 OF 2007-7-work described in the bid document, provided further thatall other qualification criteria are satisfied) at least onesimilar work of value not less than amount indicated in 1.7(usually not less than 50% of estimated value of contract).The contractor should set up quality control lab at the sitebefore starting the work, as per direction of theDepartment offices”.A perusal of the aforesaid clause of Ext.P1 would show that thetenderer should have executed the work of the prescribed volumeas a prime contractor or as a nominated sub contractor where thesub contract involved execution of all main items of workdescribed in the bid document. 12. In this case the 4th respondent’s claim is that he hasexecuted the work as a sub contractor of M/s. AmarConstructions and it is accepting this claim that he was pre-qualified by respondents 1 to 3. The question is whether on thematerial available before them whether respondents 1 to 3 werejustified in arriving at such a decision. 13. Ext.P8 is the Standard Conditions of Contract of theTamil Nadu Road Sector Project. Sub contractor has beendefined as a person or a corporate body who has a contract withthe contractor to carry out a part of the work in the contract.Clause 7.1 provides that the Contractor may sub contract withthe approval of the Engineer and that sub contracting does notalter the contractor’s obligation. Clause 7.2 provides thatconsent of the employer for sub contracting any part of the workshall not be required if the sub contractor is named in thecontract and that the contractor shall not sub contract whole of W.P.(C) No. 20863 OF 2007-8-the works and that no part of the work can be sub contractedwithout the prior consent of the Engineer. 14. At the time when the 4th respondent was pre-qualifiedthe only material that was produced by him was Ext.R3(a)certificate issued by the Divisional Engineer. It is the specificcontention of the petitioner in paragraph 7 of the writ petitionthat he had come to know that the 4th respondent had obtainedpre-qualification based on a false certificate issued by theDivisional Engineer, Tamil Nadu Road Sector Project and thiscertificate is Ext.R3(a). The same authority has, responding tothe query of the 3rd respondent issued Ext.R3(b) confirmingExt.R3(a). However, the Chief Engineer (Works) responded toletters dated 04.02.2007 and 18.06.2007 issued by the 3rdrespondent, and clarified in Ext.R3(c) that the contractor for thework was Amar Construction Company and that the 4threspondent acted for and on their behalf. According to the ChiefEngineer this was purely an internal arrangement between theContractor and the Power of Attorney Holder. Thus Ext.R3(c)does not recognize 4th respondent as a sub contractor of AmarConstruction Company and therefore with the receipt of Ext.R3(c), the story of subcontract canvassed by the 4th respondentstood exposed. 15. To maintain his stand that he was the sub contractor,the 4th respondent also supplied materials and these are Exts.R3(d), R3(e), R3(f) and R3(g). Ext.R3(d) is the agreement betweenthe Project Director, Tamil Nadu Road Sector Project and Amar W.P.(C) No. 20863 OF 2007-9-Construction Company which is signed by the 4th respondent “forand on behalf of the contractor”. Ext.R3(g) is an agreementdated 17th March 2004 between Amar Construction Company andthe 4th respondent purporting to agree to sub let PWD or NationalHighway works in Tamil Nadu State to the 4th respondent in casethese works are awarded to them. This provides that the worksshall be transferred to the sub contractor on a back to back basisand that the agreement shall be in force upto the execution andcompletion of such work. This agreement does not evidencetransfer of any work to the sub contractor and nothing has beenplaced on record to prove that there in fact has been any suchtransfer of work. 16. That apart, since Ext.P8 tender conditions requiredconsent of the Engineer for sub contracting and that the wholework could not be sub contracted, I am not persuaded to acceptExt.R3(e) on its face value and conclude on the basis of thisalone that the 4th respondent was in fact a sub contractor of thewhole work. If 4th respondent was in fact a sub contractor I amat a loss to understand why the Chief Engineer has notmentioned the same in Ext.R3(c) issued by him. 17. Ext.R3(f) is the special power of attorney that is reliedon by the 4th respondent. I have carefully gone through thepower of attorney which authorized the 4th respondent to doeverything to process application, apply for tender, attend offices,enter into correspondence, sign documents, to encash/revokebank guarantees on behalf of the principal. Even accepting the W.P.(C) No. 20863 OF 2007-10-Power of Attorney as such, it is plainly clear that this did notauthorize the 4th respondent to execute the work awarded to hisprincipals and this fact has been fairly conceded by the SeniorCounsel for the 4th respondent also. 18. The only other document is Ext.R3(g), TDS Certificateswhich show M/s. Amarshiv Construction Pvt. Ltd., as the persondeducting the tax. Even going by Ext.R3(e) and (f) sub contractagreement and the Power of Attorney, the 4th respondent hadacted on behalf of Amar Constructions Company, a companyregistered under the Companies Act 1956, which is described as adivision of Amarshiv Construction Pvt. Ltd. If his principal wasM/s. Amar Construction Company, it is not understandable as tohow M/s. Amarshiv Construction Pvt. Ltd., could deduct incometax at source. There is absolutely no explanation forthcoming inthis respect. 19. Thus, none of these documents would support theclaim of the 4th respondent that he was a sub contractor of M/s.Amar Construction Company to claim the experience prescribedin the tender conditions entitling him to be pre-qualified on thatbasis. At best the 4th respondent was, only a power of attorneyholder of Amar Constructions Company. 20. Despite this plain ineligibility of the 4th respondent,Respondents 1 to 3 have accepted his eligibility blindly actingupon Ext.R3(a), which is contradicted by Ext.R3(c) issued by theChief Engineer and their decision cannot be supported.Therefore I hold that the decision pre-qualifying the 4th W.P.(C) No. 20863 OF 2007-11-respondent is plainly arbitrary and illegal. 21. The further question that I should deal with is thecontention of the respondents that sitting in Article 226 andexercising the power of judicial review, it is beyond myjurisdiction to evaluate the correctness of the decision of therespondents. I am fully conscious of the limitations of this courtwhich has been highlighted in the various decision of this Courtas also the apex court. In fact the decision of the apex court inM/s.G.J. Fernandez v. State of Karnataka (AIR 1990 SC958), Directorate of Education v. Educomp Datamatics Ltd.(AIR 2004 SC 1962) and Master Marine Services (P) Ltd.,v. Metcalfe & Hodgkinson (P) Ltd. (2005 (6) SCC 138) wererelied on by the learned Government Pleader while RaunaqInternational Ltd. v. I.V.R. Construction Ltd., and Others(1999 (1) SCC 492) was relied on by the Senior Counsel for the4th respondent. 22. In G.J Fernandez’s case, the Apex Court held thatassessment of comparative merit between the appellant thereinand its competitor was a matter for the authority and not for thecourts to decide. However, in paragraph 12 of the samejudgment the apex court has quoted with approval the followingparagraphs from its judgment in Ramana Dayaram Shetty Vs.The International Airport Authority of India (AIR 1979 SC1628).“It is a well settled rule of administrative law that anexecutive authority must be rigorously held to thestandards by which it professes its actions to be judged W.P.(C) No. 20863 OF 2007-12-and it must scrupulously observe those standards on painof invalidation of an Act in violation of them. This rulewas enunciated by Mr.Justice Frankfurter in Vitarelli v.Seaton (1959) 359 US 535 : 3 Law Ed (Second series)1012, where the learned Judge said:“An executive agency must be rigorously held to thestandards by which it professes its action to be judged.Accordingly, if dismissal from employment is based on adefined procedure, even though generous beyond therequirements that bind such agency, that procedure mustbe scrupulously observed. This judicially evolved rule ofadministrative law is now firmly established and, if I mayadd, rightly so. He that takes the procedural sword shallperish with the sword.”xxxxxxxxx xxxxxxxxxx xxxxxxxxxxIt is, therefore, obvious that both having regard to theconstitutional mandate of Art.14 as also the judiciallyevolved rule of administrative law, the 1st respondent wasnot entitled to act arbitrarily in accepting the tender ofthe 4th respondent but was bound to conform to thestandard or norm laid down in para 1 of the noticeinviting tenders which required that only a person runninga registered IInd class hotel or restaurant and having atleast 5 years’ experience as such should be eligible totender. It was not the contention of the appellant thatthis standard or norm prescribed by the 1st respondentwas discriminatory having no just or reasonable relationto the object of inviting tenders namely, to award thecontract to a sufficiently experienced person who wouldbe able to run efficiently a IInd class restaurant at theairport. Admittedly the standard or norm was reasonableand non-discriminatory and once such a standard or normfor running IInd class restaurant should be awarded waslaid down, the 1st respondent was not entitled to departfrom it and to award the contract to the 4th respondentswho did not satisfy the condition of eligibility prescribed W.P.(C) No. 20863 OF 2007-13-by the standard or norm. if there was no acceptabletender from a person who satisfied the condition ofeligibility, the 1st respondent could have rejected thetenders and invited fresh tenders on the basis of a lessstringent standard or norm, but it could not depart fromthe standard or norm prescribed by it and arbitrarilyaccept the tender of the 4th respondents”. The judgment in the case of Directorate of Education and Otherswas in a writ petition filed aggrieved by a clause in the noticeinviting tender. It is in that context, referring to the judgment inTata Cellular Vs. Union of India (1994 (6) SCC 651), AirIndia Ltd., Vs. Cochin International Airport Ltd. (2000 (2)SCC 617) and Monarch Infrastructure (P) Ltd. Vs.Commissioner Ullhasnagar Municipal Corporation andOthers (2000 (5) SCC 287), the court held that the terms ofinvitation to tender are not open to judicial scrutiny, the samebeing in the realm of contract. 23. In this case, it is not the validity of Ext.P1 which isunder challenge but the issue is whether the 4th respondent hassatisfied the terms of the notice inviting tender. Therefore, thisjudgment also is of no assistance to the respondents. 24. In Master Marine Services Pvt. Ltd., on the facts of thecase, the court found that the appellant satisfied the tenderconditions and on that basis allowed the appeal. In so far as thejudgment in the case of Runaq International is concerned, thatarose in the context of an interim order passed by the BombayHigh Court. In paragraph 15 of the judgment itself, it has beenheld that “where the decision making process has been W.P.(C) No. 20863 OF 2007-14-structured and the tender conditions set out the requirements,the court is entitled to examine whether these requirements havebeen considered”. Thus, even this judgment does not in anymanner restrict the power of the court in examining whether theauthorities correctly assigned with the tender conditions havebeen satisfied. In its judgment in Puravankara Projects Ltd. v.Hotel Venus International {2007(2) KLT 943(SC)} the ApexCourt reversed the judgment of this Court, in view of terms of theNotice Inviting Tender.25. To my understanding, once tender conditions arespecified in the Notice Inviting Tender, the authorities are boundto ensure compliance thereof. Relaxation is possible if a right inthat behalf is reserved in the notice itself and is exercised forbonafide reasons. In this case nobody has a case that any tendercondition has been relaxed in favour of the 4th respondent. Inthis context I should refer to the apex court judgment in the caseof Monarch Infrastructure (P) Ltd., where the court has approvedthe High Court judgment in the following terms:“The High Court had taken the view that if a term of thetender having been deleted after the players entered intothe arena it is like changing the rules of the game after ithad began and therefore, if the Government or theMunicipal Corporation was free to alter the conditionsfresh process of tender was the only alternativepermissible”.26. The other contention that was raised mainly by thelearned counsel for the 4th respondent was that interference ispermissible only if public interest warrants it. I have already W.P.(C) No. 20863 OF 2007-15-found that the 4th respondent had produced Ext.R3(a) certificatewhich was confirmed by the Divisional Engineer in Ext.R3(b). Itis the specific case of the petitioner that the 4th respondent hadobtained a false certificate from the Divisional Engineer. Thiscontention is corroborated by the Ext.R3(c) issued by the ChiefEngineer. Further on a combined reading of Exts.R3(d) and R3(e)agreements, Ext.R3(f) special power of attorney and Ext.P8, I amin agreement with the learned counsel for the writ petitioner. 27. Thus, what the respondents want this court is that inspite of a finding as above, it should keep its hands off andaccept the illegality committed by respondents 1 to 3. Afterproducing a certificate like Exts.R3(a) and R3(b), the correctnessof which stands belied by the other documents, I am notprepared to still uphold what has been done by respondents 1 to3 for the only reason of public interest. In my view the 4threspondent cannot be allowed to take everyone for a ride andescape from its consequence taking refuge under public interest.Otherwise, this court will be rewarding the dishonest on theground of public interest, for the only reason that his offer wasthe lowest. In this context I should refer to the Apex Courtjudgment in W.B. State Electricity Board v. PatelEngineering Co. Ltd. & Ors. {(2001) 2 SCC 451} where it hasbeen held that:“The principle of awarding contract to thelowest tenderer applies when all things are equal. It W.P.(C) No. 20863 OF 2007-16-is equally in public interest to adhere to the rules andconditions subject to which bids are invited. Merelybecause a bid is the lowest the requirements ofcompliance with the rules and conditions cannot beignored. It is obvious that the bid of respondents 1to 4 is the lowest of bids offered. As the biddocuments of respondents 1 to 4 stand withoutcorrection there will be inherent inconsistencybetween the particulars given in the annexure andthe total bid amount, it (sic they) cannot be directedto be considered along with the other bids on thesole ground of being the lowest.”28. Now that the certificate and his claim is found to beunacceptable, the decision taken by respondents 1 to 3 deservesto be interfered with. I should also mention that the learnedcounsel for the writ petitioner submitted that though the 4threspondent has been pre-qualified, till date work has not beencommenced. It that be so, by excluding an ineligible person,public interest cannot suffer. If the rate quoted by the petitioneris not acceptable to the respondents, or the tenders are notacceptable to the respondents, the proper course is to resort tofresh tender. 29. In the result, this writ petition will stand allowed andthe decision of respondents 1 to 3 approving the pre-qualificationof the additional 4th respondent for the work tendered by Ext.P1will stand quashed. Needless to say that all further proceedings W.P.(C) No. 20863 OF 2007-17-taken on the basis of such pre-qualification also will be standquashed. The writ petition is allowed on the above terms. ANTONY DOMINICJUDGEpr/jan.