M/S. Builders Association Of ... vs The State Of Kerala
2021 Latest Caselaw 11652 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR.JUSTICE N.NAGARESH

     FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943

                       WP(C).No.9560 OF 2018(T)


PETITIONERS:

      1        M/S. BUILDERS ASSOCIATION OF INDIA,
               G-1/G-20, COMMERCE CENTRE,
               J.DADAJEE ROAD, TARDEO,
               MUMBAI-400034,
               REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE,
               MR.SABU THOMAS.

      2        SABU THOMAS,
               KOTTISSERIKUDIYIL HOUSE,
               KOTHAMANGALAM P.O., PIN-686691.

      3        SAJEEV MATHEW,
               CHERUMATTATHIL PLAZA, AARAKKUZHA ROAD JUNCTION,
               MUVATTUPUZHA-686661.

      4        SABU CHERIYAN,
               MADAKKEL HOUSE, ARAKKUZHA ROAD,
               MUVATTUPUZHA-686661.

      5        GEORGE ALIAS,
               EDAYATHU HOUSE, AYAVANA P.O.,
               MUVATTUPUZHA, PIN-686676.

      6        PAUL T.MATHEW,
               KOCHUMUTTOM, AVOLY P.O.,
               MUVATTUPUZHA, PIN-686667.

               BY ADVS.
               SRI.S.SREEKUMAR (SR.)
               SRI.R.GITHESH
               SRI.P.MARTIN JOSE
               SRI.MANJUNATH MENON
               SRI.P.PRIJITH
               SRI.THOMAS P.KURUVILLA

RESPONDENTS:

      1        THE STATE OF KERALA,
               REPRESENTED BY THE CHIEF SECRETARY,
               SECRETARIAT, THIRUVANANTHAPURAM-695001.
 WP(C).No.9560/2018(T)

                               2

      2      THE ADDITIONAL CHIEF SECRETARY,
             KERALA PUBLIC WORKS DEPARTMENT
             THIRUVANANTHAPURAM-695001.

      3      THE ADDITIONAL CHIEF SECRETARY,
             DEPARTMENT OF FINANCE
             GOVERNMENT OF KERALA.

      4      THE CHIEF ENGINEER,
             PUBLIC WORKS DEPARTMENT,
             ROAD AND BRIDGES.

      5      THE CHIEF ENGINEER,
             NATIONAL HIGHWAY,
             KERALA PUBLIC WORKS DEPARTMENT,
             PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM.

      6      THE CHIEF ENGINEER,
             PUBLIC WORKS DEPARTMENT, BUILDINGS.


      7      THE CHIEF TECHNICAL EXAMINER,
             EX OFFICIO SECRETARY TO GOVERNMENT
             FINANCE (INSPECTION-TECHNICAL WING) DEPARTMENT,
             TRIVANDRUM.

      8      THE URALUNGAL LABOUR CONTRACT CO-OPERATIVE
             SOCIETY LTD.,
             REPRESENTED BY ITS PRESIDENT,
             MADAPPALLY COLLEGE P.O.,
             VATAKARA, KOZHIKODE-673102.

      9      THRISSUR DISTRICT LABOUR CO-OPERATIVE SOCIETY LTD.
             (R.NO.1389),
             DOOR NO.7/505, NEAR KONCHERY ROAD,
             MG KAVU, P.O.THIROOR, THRISSUR, PIN-680581.

      10     THE DISTRICT NIRMITHI KENDRA,
             THIRUVANANTHAPURAM,
             CIVIL STATION, THIRUVANANTHAPURAM,
             REPRESENTED BY ITS CHAIRMAN-THE DISTRICT COLLECTOR.

      11     THE DISTRICT NIRMITHI KENDRA, PATHANAMTHITTA
             CIVIL STATION, PATHANAMTHITTA,
             REPRESENTED BY ITS CHAIRMAN-THE DISTRICT COLLECTOR.

      12     HLL INFRA TECH SERVICES LTD. (HITES),
             HLL BHAVAN, POOJAPPURA P.O.,
             THIRUVANANTHAPURAM-695012,
 WP(C).No.9560/2018(T)

                               3

             REPRESENTED BY ITS MANAGING DIRECTOR.

      13     INKEL LIMITED,
             DOOR NO.7/473ZA-5 & 6, 2ND FLOOR,
             AJIYAL COMPLEX, KAKKANAD, COCHIN, PIN-682030,
             REPRESENTED BY ITS MANAGING DIRECTOR.

      14     ROADS AND BRIDGES DEVELOPMENT
             CORPORATION OF KERALA LTD.,
             2ND FLOOR, PREETHI BUILDING, M.V.ROAD,
             PALARIVATTOM, KOCHI-682025,
             REPRESENTED BY ITS MANAGING DIRECTOR.

      15     HLL LIFECARE LIMITED,
             MAHILAMANDIRAM ROAD, POOJAPPURA,
             THIRUVANANTHAPURAM-695012,
             REPRESENTED BY ITS MANAGING DIRECTOR.

      16     KERALA STATE INDUSTRIAL ENTERPRISES LIMITED,
             ST.JOSEPH'S PRESS BUILDING, COTTON HILL,
             VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN-695014,
             REPRESENTED BY ITS MANAGING DIRECTOR.

      17     FOREST INDUSTRIES (TRAVANCORE) LIMITED,
             THAIKKATTUKARA P.O., ALUVA-683 106,
             REPRESENTED BY ITS MANAGING DIRECTOR.

      18     KERALA SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD
             (KERALA SIDCO),
             HOUSING BOARD BUILDING, 6TH FLOOR,
             SANTHI NAGAR, THIRUVANANTHAPURAM-695001,
             REPRESENTED BY ITS MANAGING DIRECTOR.

      19     THE DISTRICT NIRMITHI KENDRA, KANNUR
             CIVIL STATION, KANNUR, PIN-670 002,
             REPRESENTED BY ITS CHAIRMAN-THE DISTRICT COLLECTOR.

             R1, R12 BY ADV. SMT.BINI SARAMMA
             R1 BY ADV. SRI.V.KRISHNA MENON
             R1 BY ADV. SRI.E.K.MADHAVAN
             R1 BY ADV. SRI.PRINSUN PHILIP
             R9 BY ADV. SMT.R.RAJITHA
             R9 BY ADV. SRI.SANTHOSH P.PODUVAL
             R1 BY ADV. SMT.J.SURYA
             R18 BY SRI.M.RAJAGOPALAN NAIR, SC, SMALL INDUSTRIES
             DEVELOPMENT CORPORATION
             R17 BY ADV. SRI.M.K.THANKAPPAN
             R1 BY ADV. SMT.P.VIJAYAMMA
             BY SRI.M.SASINDRAN, SC, URALUNGAL LABOUR CONTRACT
 WP(C).No.9560/2018(T)

                               4

             CO-OPERATIVE SOCIETY NO.10957
             R18 BY ADV. MR.BIJU G., SC, SIDCO
             SR.GOVERNMENT PLEADER SMT. DEEPA NARAYANAN

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.9560/2018(T)

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                              JUDGMENT

Dated this the 09th day of April, 2021

The 1st petitioner in the writ petition is an

association of contractors and the petitioners 2 to 6 are

registered 'A' Class contractors engaged in the Government of

Kerala. The petitioners are challenging the procedure adopted

by the respondents 1 to 7 in allocation of general Civil

Construction work only to accredit agencies.

2. A Division Bench of this Court has considered the

issue in W.A. No.1117 of 2017 and in the judgment dated

12.03.2018, the Division Bench of this Court held as follows:

"Before us, the main grievance raised by the learned counsel for the appellants was with respect to the judgment to the extent State has been given liberty to invite tenders form accredited contractors also. According to the learned counsel, the requirements of Article 14 could be satisfied only if the state invites tenders from all contractors giving them equal opportunity, without confining eligibility to accredited contractors.

True, we agree that equality is the hallmark of Article 14. But, however, when tenders are invited it is WP(C).No.9560/2018(T)

for the State to prescribe the qualifying norms. In exercise of that right, the State is entitled also to confine eligibility to accredited contractors and such a system is not objectionable. If the argument that every contractor is entitled to every work is accepted, that will also be disastrous. Therefore, we are unable to accept the contention now advanced by the learned counsel for the appellants."

3. In view of the findings of the Division Bench and the

law laid down in the judgment in W.A. No.1117 of 2017, this

Court is of the considered opinion that the issue raised in this

writ petition is covered by the said judgment. Accordingly, this

writ petition is dismissed. Ext.P8(h) judgment will govern the

field.

Sd/-

N. NAGARESH JUDGE SR WP(C).No.9560/2018(T)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF RELEVANT PORTIONS OF THE KERALA PWD MANUAL.

EXHIBIT P2 TRUE COPY OF G.O.(P)NO.408/2007/FIN DATED 07-09-2007 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P3 TRUE COPY OF G.O.(P)NO.311/14/FIN. DATED 30-07-2014.

EXHIBIT P4 TRUE COPY OF G.O.(MS)NO.423/14/FIN DATED 26-09-2014.

EXHIBIT P5 TRUE COPY OF G.O.(P)NO.11/2015/FIN. DATED 08-01-2015.

EXHIBIT P6 TRUE COPY OF G.O.(P)NO.339/2015/FIN DATED 07-08-2015 ALONG WITH THE ANNEXED LIST OF ACCREDITED AGENCIES.

EXHIBIT P7 TRUE COPY OF G.O.(P)NO.230/15/FIN DATED 16-

06-2015 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P8 TRUE COPY OF G.O.(P)NO.453/2015/FIN DATED 09-10-2015 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P9 TRUE COPY OF JUDGMENT IN WP(C)NO.39162 OF 2016 DATED 23-03-2017 OF THIS HON'BLE COURT.

EXHIBIT P10 TRUE COPY OF G.O.(P)NO.95/2017/FIN. DATED 25-07-2017 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P11 TRUE COPY OF G.O.(P)NO.122/2017/FIN DATED 18-09-2017.

EXHIBIT P12 TRUE COPY OF G.O.(P)NO.142/2017/FIN DATED 09-11-2017 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P13 TRUE COPY OF G.O.(P)NO.29/2018/FIN DATED 28-02-2018 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P14 TRUE COPY OF CIRCULAR NO.23/7/07 DATED 05-

07-2007 ISSUED BY THE CENTRAL VIGILANCE COMMISSION.

EXHIBIT P15 TRUE COPY OF RELEVANT PORTION OF REPORT WP(C).No.9560/2018(T)

SUBMITTED BY COMPTROLLER AND AUDITOR GENERAL OF INDIA(CAG) ON THE ECONOMIC SECTOR FOR THE YEAR ENDED ON MARCH 2017 (GOVERNMENT OF KERALA, REPORT NO.06 OF THE YEAR 2018)

EXHIBIT P16 TRUE COPY OF THE NOTICE INVITING BIDS DATED 02-02-2019 ISSUED BY THE DEPARTMENT OF TOURISM, GOVERNMENT OF KERALA.

EXHIBIT P17 TRUE COPY OF G.O.(P)No.77/2019/FIN DATED 04-07-2019 ISSUED BY THE 1ST RESPONDENT.

RESPONDENTS' EXHIBITS:

EXHIBIT R8(a) A TRUE COPY OF THE CERTIFICATE OF EXCELLENCE ISSUED BY THE NATIONAL CO- OPERATIVE DEVELOPMENT CORPORATION TO THE 8TH RESPONDENT SOCIETY.

EXHIBIT-R8(b) A TRUE COPY OF THE CERTIFICATE OF EXCELLENCE ISSUED BY THE NATIONAL CO- OPERATIVE FEDERATION OF INDIA LIMITED TO THE 8TH RESPONDENT SOCIETY.

EXHIBIT-R8(c) TRUE COPY OF THE PROFORMA FOR COMPLETION CERTIFICATE IN RESPECT OF THE WORKS EXECUTED BY THE SOCIETY.

EXHIBIT-R8(d) A TRUE COPY OF THE CONFIRMATION OF COMPLETION CERTIFICATE IN RESPECT THE WORKS EXECUTED BY THE SOCIETY.

EXHIBIT-R8(e) A TRUE COPY OF THE EXPERIENCE CERTIFICATE IN RESPECT OF WORKS EXECUTED BY THE SOCIETY.

EXHIBIT-R8(f) A TRUE COPY OF THE COMPLETION CERTIFICATE DATED 25-06-2012 IN RESPECT OF THE WORKS EXECUTED BY THE SOCIETY.

EXHIBIT-R8(g) A TRUE COPY OF COMPLETION CERIFICATE DATED 19.3.2016 IN RESPECT OF THE WORKS BY THE SOCIETY.

EXHIBIT-R8(h) A TRUE COPY OF THE JUDGMENT OF THIS HONBLE COURT IN W.A.NO.1117 OF 2017 DATED 12.3.2018.