Point of Law: Section 187 of Act, 1961 deals with Change in constitution of a firm.

JUDGMENT :

SHAJI P. CHALY, J.

The appeal is filed by the writ petitioners in W.P.(C) No. 32855 of 2022 challenging the judgment of the learned single Judge dated 09.11.2022, whereby the writ petition was dismissed.

2. The first appellant consortium and the 3rd respondent consortium M/s. Anchor-SSIPL-MIPL were participants in a tender invited by the Kerala State Electricity Board Limited, respondent No.1, as per Exhibit P1 dated 03.05.2022. The writ petition was filed by the appellants being aggrieved by the pre-qualification and the consequent declaration of the third respondent Consortium as L1 bidder as per Exhibits P4 and P5 Notes dated 07.10.2022 and 10.10.2022 respectively. According to the appellants, the third respondent Consortium is not qualified for want of the qualifications prescribed under clauses 3.1.6, 26.1, 27.1, 27.2, 29.1 and 29.2 of Ext.P1; and it was overlooking the rigour of the said qualifications, respondents 1 and 2 had declared that the third respondent consortium had the requisite financial qualification.

3. It is further contended in the writ petition that when clauses 3.1.6 and 27.1 of the instructions to the bidders contained at Exhibit P1 that the last three years’ income to be taken into account, there cannot be any question, under any stretch of imagination, that the alleged infusion of assets which took place pursuant to Exhibit P8 dated 01.04.2022 by and between a proprietor and a partnership can be accounted for that purpose.

4. It is further contended that insofar as clause 26.2.1(c) is concerned, Exhibit P10 certificate dated 01.08.2009 issued by the bidder is not one issued to any of the consortium members of the third respondent and it is only to be assumed that it is not in compliance with the pre-requisite demanded by the said clause.

5. Anyhow, the learned single Judge, after taking into consideration clauses 3.1.6, 27.1 and 27.2 of Exhibit P1 pre-qualification bid document and Exhibit P8 agreement dated 01.04.2022 executed by and between a proprietary concern and a partnership firm, held that the lead bidder is having 30% turnover for the previous 3 assessment years namely 2019-2020, 2020-2021 and 2021-2022; and therefore, the contentions advanced by the appellants were brushed aside and the writ petition was allowed, taking into account the proposition of law laid down by the Apex Court in the decisions in Silpi Constructions Contractors v Union of India and another [(2020) 16 SCC 489], and Tata Cellular v Union of India [(1994) 6 SCC 651]. It is, thus, challenging the legality and correctness of the judgment of the learned single Judge, the appeal is preferred.

6. Shorn of unnecessary details, the basic facts required for the disposal of the writ appeal are as follows:

The Kerala State Electricity Board Limited through the Chief Engineer second respondent, invited tenders for the execution of Civil and Hydro Mechanical works of Upper Sengulam Hydro Electric Project as per Ext.P1 e-tender notice dated 03.05.2022 with the Probable Amount of Contract (PAC) at Rs.175,60,70,410/-. The first appellant namely PGCCPL & ARYACON CONSORTIUM, and respondents 3 and 4 were pre-qualified in the tender and Ext.P4 Note containing the details of the pre-qualified bidders was published on 07.10.2022. The financial bids were opened on 10.10.2022, and the third respondent was declared as the lowest bidder, as is evident from Ext.P6.

7. According to the appellants, they had serious doubts about the third respondent's qualification, and therefore, the materials submitted by the third respondent in support of its bid was downloaded from the website. It is submitted that on scrutiny of the documents, the apprehension with respect to the disqualification of the third respondent was found to be correct. It is also contended that the third respondent had failed to comply with the requirements of clauses of 26.2.1(c