Kerala High Court
P.M.Hassankutty vs The State Of Kerala on 2 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 02ND DAY OF FEBRUARY 2021/13TH MAGHA,1942
WP(C).No.6241 OF 2020(E)
PETITIONER:
P.M.HASSANKUTTY,
AGED 65 YEARS,
S/O. MEERAN RAWTER,
PARAPPALLIL HOUSE, VALAVUKAYAM,
ANAKKAL P.O., KANJIRAPPALLY-686 508.
BY ADVS.
SRI.ALEX.M.SCARIA
SMT.SARITHA THOMAS
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY PRINCIPAL SECRETARY TO
GOVERNMENT, STATIONERY DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
ADDL. 2 ASHA WASTE PAPER COMPANY,
48/2386, THANIKKAL JUNCTION,
ELAMAKKARA P.O.,
KOCHI - 682026,
REPRESENTED BY ITS PROPRIETOR,
SRI.K.RENJAN SHENOY.
IS IMPLEADED AS PER ORDER DATED 21.01.2021 IN
IA No.1/2021 IN WP(C) 6241/2020.
R1 BY GOVERNMENT PLEADER SMT. K.M.RASHMI
R2 BY ADV. P.SANTHOSH KUMAR (PANAMPALLI NAGAR)
R2 BY ADV. SRI.K.P.CHANDRASEKHAR
R2 BY ADV. SRI.V.ANANDA SHENOY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 02.02.2021, ALONG WITH WP(C).6643/2020(E), WP(C).6940/
2020(N), WP(C).7173/2020(V), WP(C).7526/2020(M), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.6241,6643,6940,7173&7526/2020
:2 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 02ND DAY OF FEBRUARY 2021/13TH MAGHA,1942
WP(C).No.6643 OF 2020(E)
PETITIONER:
RINROSE TRADERS,
ELAMAKARA P.O.,
KALOOR,
COCHIN-682 017,
REPRESENTED BY ITS MANAGING PARTNER.
BY ADVS.
SRI.LINDONS C.DAVIS
SMT.E.U.DHANYA
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY,
PRINTING AND STATIONERY DEPARTMENT,
THIRUVANANTHAPURAM-695001.
2 CONTROLLER OF STATIONERY,
OFFICE OF THE CONTROLLER OF STATIONERY,
STATIONERY DEPARTMENT,
PMG, THIRUVANANTHAPURAM-695033.
3 ISMAIL P.B.,
S/O.M.A.BAVA,
PADINJAKKARA HOUSE,
VATTEKUNNAM,
NJALAKAM DESOM,
THRIKKAKARA NORTH VILLAGE,
ERNAKULAM DISTRICT-682021.
WP(C) No.6241,6643,6940,7173&7526/2020
:3 :
4 SALIM T.A.,
S/O.T.A.ALIYAR,
THALAKOTTIL HOUSE,
VATTEKUNNAM, NJALAKAM DESOM,
THRIKKAKARA NORTH VILLAGE,
ERNAKULAM DISTRICT-682021.
5 M.M.ALI,
S/O.MOIDEEN, MATTAPILLY HOUSE,
ARAKKAKADAVU, VENNALA,
KAKKANAD VILLAGE,
ERNAKULAM DISTRICT-682028.
6 D.GOPINATH,
KUNNUMEL THEKKETHIL HOUSE,
ERUVA P.O., KAYAMKULAM,
ALAPPUZHA DISTRICT-690572.
7 ANOOP C.K.,
S/O.ABDUL KHADER, CHERUPULLIPARAMBIL HOUSE,
VENNALA P.O., CHALIKKAVATTOM-682028.
8 KOZHIKODE DISTRICT SCHEDULED CASTE LABOUR
CONTRACT CO-OPERATIVE SOCIETY LTD.,
REPRESENTED BY ITS SECRETARY,
NEAR OLD BUS STAND,
THAMARASSERY P.O.-673573.
R1-2 BY GOVERNMENT PLEADER SMT. K.M.RASHMI
R3-5, R7 BY ADV. SRI.R.SANJITH
R3-5, R7 BY ADV. SMT.C.S.SINDHU KRISHNAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 02.02.2021, ALONG WITH WP(C).6241/2020(E), WP(C).6940/
2020(N), WP(C).7173/2020(V), WP(C).7526/2020(M), THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.6241,6643,6940,7173&7526/2020
:4 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 02ND DAY OF FEBRUARY 2021/13TH MAGHA,1942
WP(C).No.6940 OF 2020(N)
PETITIONER:
VISHNU SOMAN,
AGED 28 YEARS,
S/O D. SOMAN, MANAGING PARTNER,
VINAYAKA TRADERS, ERUVA P.O.,
KAYAMKULAM.
BY ADV. SRI.K.R.SUNIL
RESPONDENTS:
1 THE STATE OF KERALA,
REP BY THE PRINCIPAL SECRETARY,
PRINTING AND STATIONARY DEPARTMENT,
THIRUVANANTHAPURAM-695 001.
2 THE CONTROLLER OF STATIONARY,
OFFICE OF THE STATIONERY CONTROLLER,
THIRUVANANTHAPURAM-695 033.
3 THE DEPUTY CONTROLLER OF STATIONERY,
OFFICE OF THE STATIONERY CONTROLLER,
THIRUVANANTHAPURAM-695 033.
4 SHYNI MARTIN,
RING ROSE TRADERS, KURISHINGAL HOUSE,
ELAMAKKARA P.O., ERNAKULAM.
5 T.A SALIM,
S/O T.A ALIYAR, THALAKKOTTIL HOUSE,
VATTEKKUNNAM, NJALAKAM DESOM,
THRIKKAKARA NORTH VILLAGE, ERNAKULAM DISTRICT.
WP(C) No.6241,6643,6940,7173&7526/2020
:5 :
6 M.M. ALI,
S/O MOIDEEN, MATTAPPALLIL HOUSE,
ARAKKAKADAVU, VENNALA,
KAKKANAD VILLAGE, ERNAKULAM
7 ISMAIL P.B.,
S/O M.A.BAVA, PADINJAKKARA HOUSE,
VATTEKKUNNAM, NJALAKAM DESOM,
THRIKKAKARA NORTH VILLAGE,
ERNAKULAM DISTRICT.
8 C.K.ANOOB,
S/O ABDUL KHADER, CHERUPULLIPARAMBIL HOUSE,
VENNALA P.O., CHALIKKAVATTOM,
ERNAKULAM DISTRICT.
9 THE DIRECTOR,
VIGILANCE AND ANTI CORRUPTION BUREAU PMG,
VIKAS BHAVAN, THIRUVANANTHAPURAM
R1-3,R9 BY GOVERNMENT PLEADER SMT K.M.RASHMI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 02.02.2021, ALONG WITH WP(C).6241/2020(E), WP(C).6643/
2020(E), WP(C).7173/2020(V), WP(C).7526/2020(M), THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.6241,6643,6940,7173&7526/2020
:6 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 02ND DAY OF FEBRUARY 2021/13TH MAGHA,1942
WP(C).No.7173 OF 2020(V)
PETITIONER:
VIGNESH SOMAN,
AGED 26 YEARS,
S/O. D.SOMAN, PROPRIETOR,
KARTHIKEYA TRADERS, ERUVA P.O.,
KAYAMKULAM
BY ADV. SRI.K.R.SUNIL
RESPONDENTS:
1 THE STATE OF KERALA,
REP BY THE PRINCIPAL SECRETARY,
PRINTING AND STATIONARY DEPARTMENT,
PMG P.O., THIRUVANANTHAPURAM-695 033
2 THE CONTROLLER OF STATIONARY,
OFFICE OF THE STATIONERY CONTROLLER,
PMG P.O., THIRUVANANTHAPURAM-695 033
3 THE DEPUTY CONTROLLER OF STATIONERY,
OFFICE OF THE STATIONERY CONTROLLER,
PMG P.O., THIRUVANANTHAPURAM-695 033
4 SHYNI MARTIN,
RING ROSE TRADERS, KURISHINGAL HOUSE,
ELAMAKKARA P.O., ERNAKULAM-682 026
5 T.A.SALIM,
S/O. T.A.ALIYAR, THALAKKOTTIL HOUSE,
VATTEKKUNNAM, NJALAKAM DESOM,
THRIKKAKARA NORTH VILLAGE P.O,
ERNAKULAM DISTRICT-682 030
WP(C) No.6241,6643,6940,7173&7526/2020
:7 :
6 M.M.ALI,
S/O. MOIDEEN, MATTAPPALLIL HOUSE,
ARAKKAKADAVU, VENNALA P.O.,
KAKKANAD VILLAGE,
ERNAKULAM-682 028
7 ISMAIL P.B.,
S/O. M.A BAVA, PADINJAKKARA HOUSE,
VATTEKKUNNAM, NJALAKAM DESOM,
THRIKKAKARA NORTH VILLAGE,
ERNAKULAM DISTRICT-682 030
8 C.K.ANOOB,
S/O. ABDUL KHADER, CHERUPULLIPARAMBIL HOUSE,
VENNALA P.O., CHALIKKAVATTOM,
ERNAKULAM DISTRICT-682 028
9 THE DIRECTOR,
VIGILANCE AND ANTI CORRUPTION BUREAU P.M.G,
VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033
R1-3,R9 BY GOVERNMENT PLEADER SMT K.M.RASHMI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 02.02.2021, ALONG WITH WP(C).6241/2020(E), WP(C).6643/
2020(E), WP(C).6940/2020(N), WP(C).7526/2020(M), THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.6241,6643,6940,7173&7526/2020
:8 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 02ND DAY OF FEBRUARY 2021/13TH MAGHA,1942
WP(C).No.7526 OF 2020(M)
PETITIONER:
D.GOPINATH,
AGED 51 YEARS,
S/O DAMODARA PANICKER,
MANAGING PARTNER,
SAKTHI TRADERS,
ERUVA P.O., KAYAMKULAM
BY ADV. SRI.K.R.SUNIL
RESPONDENTS:
1 THE STATE OF KERALA,
REP BY THE PRINCIPAL SECRETARY,
PRINTING AND STATIONARY DEPARTMENT,
PMG P.O., THIRUVANANTHAPURAM-695 033.
2 THE CONTROLLER OF STATIONARY,
OFFICE OF THE STATIONERY CONTROLLER,
PMG P.O., THIRUVANANTHAPURAM-695 033.
3 THE DEPUTY CONTROLLER OF STATIONERY,
OFFICE OF THE STATIONERY CONTROLLER,
PMG P.O., THIRUVANANTHAPURAM-695 033.
4 SHYNI MARTIN,
RING ROSE TRADERS, KURISHINGAL HOUSE,
ELAMAKKARA P.O., ERNAKULAM-682 026.
WP(C) No.6241,6643,6940,7173&7526/2020
:9 :
5 T.A.SALIM,
S/O T.A ALIYAR,
THALAKKOTTIL HOUSE,
VATTEKKUNNAM, NJALAKAM DESOM,
THRIKKAKARA NORTH VILLAGE P.O.,
ERNAKULAM DISTRICT-682 030.
6 M.M ALI,
S/O MOIDEEN, MATTAPPALLIL HOUSE,
ARAKKAKADAVU, VENNALA P.O.,
KAKKANAD VILLAGE, ERNAKULAM-682 028.
7 ISMAIL P.B,
S/O M.A.BAVA, PADINJAKKARA HOUSE,
VATTEKKUNNAM, NJALAKAM DESOM,
THRIKKAKARA NORTH VILLAGE,
ERNAKULAM DISTRICT-682 030.
8 C.K.ANOOB,
S/O ABDUL KHADER, CHERUPULLIPARAMBIL HOUSE,
VENNALA, P.O.CHALIKKAVATTOM,
ERNAKULAM DISTRICT-682 028.
9 THE DIRECTOR,
VIGILANCE AND ANTI CORRUPTION BUREAU PMG,
VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033.
R1-3, R9 BY GOVERNMENT PLEADER SMT. K.M.RASHMI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 02.02.2021, ALONG WITH WP(C).6241/2020(E), WP(C).6643/
2020(E), WP(C).6940/2020(N), WP(C).7173/2020(V), THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.6241,6643,6940,7173&7526/2020
: 10 :
[CR]
N. NAGARESH, J.
`````````````````````````````````````````````````````````````
W.P.(C) Nos.6241, 6643, 6940, 7173
and 7526 of 2020
`````````````````````````````````````````````````````````````
Dated this the 2nd day of February, 2021
JUDGMENT
~~~~~~~~~
Petitioners in all these writ petitions are doing
business in used papers. They buy old and used papers and
sell it as raw materials for paper recycling industries. They
have approached this Court aggrieved by conditions in the
e-tender notification No.1308/D1/2019/Stationery dated
20.10.2019 issued by the Stationery Controller, Stationery
Department, Government of Kerala.
2. Clause 11 of the said e-tender notification
No.1308/D1/2019/Stationery dated 20.10.2019 issued by the
WP(C) No.6241,6643,6940,7173&7526/2020
Stationery Controller (hereinafter referred to as 'the
Notification' for short) provides that tenders quoting price
below the Government approved market rate would not be
approved. Those tenders quoting up to 30% above the
current market rate will be treated as competitive bids and
tenders exceeding the said limit will be treated as abnormal
prices and would be rejected.
3. The contention of the petitioners is that there
cannot be a ceiling limit to be fixed in a process of competitive
bidding. Competitive bidding means persons who are offering
more competitive rates will be selected as successful bidders.
If ceiling limit is fixed, all persons participating in the tender
would be quoting equal amount up to the ceiling limit. Such
quotes cannot be treated as competitive bids.
4. The petitioners would further contend that the said
Clause No.11 would cause or is likely to cause an appreciable
adverse effect on competition. It is therefore void, offending
the provisions contained in the Competition Act, 2002.
Though the respondents would contend that Clause 11 is
WP(C) No.6241,6643,6940,7173&7526/2020
intended to avoid unhealthy competition, the condition in effect
is to bid in accordance with the rates published for a different
period. The Notification was published in October, 2019. At
that time, the published rates were for the month from July,
2019 to September, 2019.
5. Petitioners would further contend that the
districtwise rates of papers made available by the respondents
to this Court on 15.01.2021, were not available at the time of
Ext.P1 Notification. There was no publication of market rate
fixed by the Government. The petitioners therefore could not
have quoted rates as stipulated in Clause 11 of the
Notification.
6. Quoting the rates published for items, the ceiling
limit and rate selected in the tender proceedings, the
petitioners argued that the rates selected by the respondents
for award of contracts, are not the rates within the ceiling limit
of 30% added to the current market rate. The selected rates
are 2 to 3 times higher than the notified rates. Furthermore,
the selected rates are not the highest rates quoted. In short,
WP(C) No.6241,6643,6940,7173&7526/2020
contractors who have been selected are not the contractors
who have quoted within the ceiling limit. Nor are they the
persons who have quoted the highest rates. The proceedings
pursuant to the said Notification are therefore highly illegal,
arbitrary and unsustainable, contended the petitioners.
7. The Controller of Stationery resisted the writ
petitions filing counter affidavit. The Stationery Controller
stated that tenders were awarded to those bidders who had
quoted acceptable rates as per the tender Company condition
in Clause 11 of the Notification. According to the Stationery
Controller, the market rate for various waste paper items was
published in the e-tender site of Government of Kerala and in
the website of Stationery Department.
8. While publishing the Notification, these market
rates were concluded based on the average rates for various
waste paper items published by the Economic and Statistics
Department of the Government of Kerala, for the period from
July, 2019 to September, 2019. The Stationary Controller
further stated that a tenderer can quote a rate not below the
WP(C) No.6241,6643,6940,7173&7526/2020
market rate fixed for a particular kind of waste paper item. He
can quote a maximum competitive rate up to 30% above the
market rate. Quoted rate is not the exclusive factor in
awarding a tender. History of performance of contractors is a
decisive factor. The contract is not intended to be awarded
solely on the basis of the highest quote.
9. Relying on the judgment of the Apex Court in
Jagdish Mandal v. State of Orissa and others [(2007) 14
SCC 517], Sri. K.R. Sunil, learned counsel appearing for the
petitioners in WP(C) Nos.6940, 7173 and 7526 of 2020,
argued that interference in tender or contractual matters in
exercise of power of judicial review is permissible if the
process adopted or decision made is malafide or intended to
favour someone or the same is so arbitrary and irrational that
no responsible authority acting under law could have arrived
at it or it affected the public interest. Relying on the judgment
of the Apex Court in Chairman, All India Railway
Recruitment Board and another v. K. Shyam Kumar and
others [(2010) 6 SCC 614], the learned counsel for the
WP(C) No.6241,6643,6940,7173&7526/2020
petitioners urged that this Court is bound to interfere with the
impugned tender proceedings since the proceedings are so
reprehensible in its defiance of logic or of accepted standards
that no sensible person who had applied his mind to the issue
to be decided could have opted it.
10. The learned counsel for the petitioners further
argued that by the impugned Notification, the bidders are
required to do what they cannot possibly perform. Therefore,
in view of the judgment of this Court in Sree Vigneshwara
Packs (SV Packs) v. Travancore Devaswom Board and
another [2019 KHC 953], the impugned Notification is liable to
be set aside.
11. Sri. Alex M. Scaria, learned counsel appearing for
the petitioner in W.P.(C) No.6241/2020, argued that Clause
No.11 in the impugned Notification is highly unjust and illegal
and if the tenders which quote amounts in excess of 30% of
the the market value are not accepted as valid tenders, it can
add only loss to the government exchequer. When there is a
condition in a Notification which is against the interest of the
WP(C) No.6241,6643,6940,7173&7526/2020
State and is intended to cause loss to the State, this Court
would be justified in setting aside the Notification and directing
the State to issue a fresh Notification.
12. Sri. Lindons C. Davis, learned counsel for the
petitioner in W.P.(C) No.6643/2020, contended that the
contractors selected by the State are not the persons who
have quoted within the ceiling limit or persons who have
quoted the highest rate in spite of ceiling limits. The method
of selection is not known to the public. Therefore, this Court
has to direct the respondents to award the contracts to the
highest bidders.
13. I have heard the learned counsel for the petitioners
appearing in the writ petitions and the learned Government
Pleader appearing for State-respondents. I have also heard
the counsel appearing for the contesting respondents in the
writ petitions.
14. From the affidavits filed by the Controller of
Stationery, it is evident that in each financial year, contracts
for the sale of waste papers are being fixed for a higher rate
WP(C) No.6241,6643,6940,7173&7526/2020
than that of the previous year, due to competition among
bidders. It is a common practice followed by the selected
contractors not to lift waste papers from various Government
offices. Many a time, bids are made on abnormal prices and
subsequently the contractors refuse to lift waste paper. It was
in these circumstances that it was decided to incorporate
Clauses 11 and 13 to the tender conditions.
15. Rates of papers were calculated in each District
based on the Economics and Statistics Department's market
rate table from July, 2019 to September, 2019. There is no
illegality or arbitrariness on the part of a tendering authority in
insisting that the quotes should not be below the market rate
and should not exceed more than 30% of the current market
rate. The contention of the petitioners is that current market
rates were not published and what was published was the
market rates of the preceding three months.
16. This Court is unable to accept the said argument of
the petitioners for the reason that market rates are generally
fixed taking into account the price of the commodity during the
WP(C) No.6241,6643,6940,7173&7526/2020
immediately preceding period also. Clause 11 of the tender
Notification states that market rates which are existing for the
time being, will be the criteria. Therefore, if an authority
competent to decide market rates of waste paper has notified
the market rates for the preceding three months and that is
the only official market rate which is available, the Controller
of Stationery will be justified in taking the same as the market
rate for the purpose of selection of bidders.
17. The further argument of the petitioners is that the
market rates were not published in the tender Notification and
therefore by insisting compliance of Clause 11, the petitioners
are forced to do an impossible task of presuming the market
rate for quoting bid amounts. The bidders are compelled to
do what they cannot possibly perform, is the argument. This
argument does not appear to be correct. The counter affidavit
in the writ petitions would indicate that market rates for various
waste paper items were published in the e-tender site of
Government of Kerala and in the website of Stationery
Department. While publishing the impugned Notification,
WP(C) No.6241,6643,6940,7173&7526/2020
these market rates were decided on the basis of average
rates for various waste paper items published by the
Economics and Statistics Department, Government of Kerala
for the period from July, 2019 to September, 2019. The
market rates are in public domain, especially in the website of
Stationery Department. The petitioners cannot legally insist
that the Stationary Controller should disclose the existing
market rates in the tender Notification itself.
18. The petitioners would contend that fixing of ceiling
limits in a tender would make the same non-competitive. In a
competitive tender proceedings, there cannot be a ceiling. It
would be against the interest of the State also, contended the
petitioners. In this regard, it is to be noted that the selection of
contractors through the tender process is not based on the
amount quoted alone. Various factors and qualifications of
the contractors are taken into account. The previous
transactions and history of the contractors are also made
relevant criteria for award of contract. Therefore, it cannot be
said that fixing a ceiling limit by itself would defeat the
WP(C) No.6241,6643,6940,7173&7526/2020
competitiveness of the tender. Even if there are more than
one tenderer who has quoted the same upper ceiling limit, the
selection will be based on other criteria also. In short, the
competitiveness of bidders is not decided on the basis of bid
amounts alone.
19. Clause 11 has been included in the notification
based on the past experience of the authorities. It was a
common practice that bidders for waste papers quote
abnormal and unrealistic prices and get the contract awarded
in their favour. Subsequently, such contractors refuse to lift
the waste papers perhaps due to the reason that they will not
make much profit due to the abnormal rates quoted by
themselves. The authorities were drawn to litigations by such
defaulting contractors. Even when such contractors are
blacklisted, the experience of the authorities is that the same
contractors will again make bids in the name of some other
entities and get the contract awarded in their favour. It is such
past experience that has compelled the Controller of
Stationery to include Clause 11 in the impugned tender
WP(C) No.6241,6643,6940,7173&7526/2020
Notification. This Court does not find any illegality or
irregularity in the conditions stipulated.
20. The arguments of the petitioners based on Sections
3 and 4 of the Competition Act, 2002 are also unacceptable.
The argument is that the provisions in the e-tender Notification
dated 20.10.2019 are in violation of Sections 3 and 4 of the
Act, 2002.
21. Section 3 of the Competition Act, 2002 provides
that no enterprise or association of enterprises or person or
association of persons shall enter into any agreement in
respect of production, supply, distribution, storage, acquisition
or control of goods or provision of services, which causes or is
likely to cause an appreciable adverse effect on competition
within India. Sub-section (2) of Section 3 states that any
agreement entered into in contravention of the provisions
contained in sub-section (1) shall be void. As per sub-section
(3) of Section 3, any agreement entered into between
enterprises or associations of enterprises or persons or
associations of persons or between any person and enterprise
WP(C) No.6241,6643,6940,7173&7526/2020
or practice carried on, or decision taken by, any association of
enterprises or association of persons, including cartels,
engaged in identical or similar trade or goods or provision of
services, which directly or indirectly determines purchase or
sale prices shall be presumed to have an appreciable adverse
effect on competition.
22. The question is whether the Stationery Controller,
Stationery Department, who has floated the e-tender
Notification, can be treated as "enterprise" and would come
within the ambit of Section 3. Section 2(h) defines
"enterprise" as follows:-
"enterprise" means a person or a department of
the Government, who or which is, or has been,
engaged in any activity, relating to the production,
storage, supply, distribution, acquisition or control of
articles or goods, or the provision of services, of any
kind, or in investment, or in the business of acquiring,
holding, underwriting or dealing with shares,
debentures or other securities of any other body
corporate, either directly or through one or more of its
units or divisions or subsidiaries, whether such unit or
division or subsidiary is located at the same place
where the enterprise is located or at a different place or
at different places, but does not include any activity of
the Government relatable to the sovereign functions of
the Government including all activities carried on by the
departments of the Central Government dealing with
atomic energy, currency, defence and space.
Explanation - For the purposes of this clause, -
WP(C) No.6241,6643,6940,7173&7526/2020
(a) "activity" includes profession or occupation;
(b) "article" includes a new article and "service"
includes a new service;
(c) "unit" or "division", in relation to an enterprise,
includes -
(i) a plant or factory established for the
production, storage, supply, distribution, acquisition or
control of any article or goods;
(ii) any branch or office established for the
provision of any service."
The activity of selling waste paper/used paper cannot be
treated as an activity of the Government relatable to the
sovereign functions of the Government. Therefore, the
Stationery Controller representing the Government of Kerala
would indeed fall within the definition of "enterprise".
23. However, that by itself will not help the petitioners in
any manner because to term any agreements as anti-
competitive agreement and to make Section 3 applicable to
the Stationery Controller, supply of used paper/waste paper
should be of such a nature that it is likely to cause an
appreciable adverse effect on competition within India.
Selling through auction waste paper/used paper generated in
the Government offices in Kerala, cannot be said to be one
causing an appreciable adverse effect on competition within
WP(C) No.6241,6643,6940,7173&7526/2020
India. Any agreements entered into between the Stationery
Controller and contractors for sale/purchase of waste
paper/used paper cannot be described as one directly or
indirectly determining purchase or sale price in identical or
similar trade of goods
24. Section 4(1) of the Competition Act, 2002 prohibits
abuse of dominant position and provides that no enterprise or
group shall abuse its dominant position thereby directly or
indirectly imposing unfair or discriminatory condition in
purchase or sale of goods in services or price in purchase or
sale (including predatory price) of goods or service. Clause
(a) under Explanation to Section 4(2) defines "dominant
position" as a position of strength, enjoyed by an enterprise in
the relevant market in India, which enable it to operate
independently of competitive forces prevailing in the relevant
market or affect its competitors or consumers or the relevant
market in its favour.
25. The sale of waste paper/used paper by the
Government of Kerala under no stretch of imagination, can be
WP(C) No.6241,6643,6940,7173&7526/2020
said to make the Government in a dominant position in the
waste paper/used paper market in India. Therefore, the
question of abuse of dominant position by the Stationery
Controller or Government of Kerala does not arise. The
contentions of the petitioners based on Sections 3 and 4 of
the Competition Act, 2002 are therefore liable to be rejected.
For all the above reasons, this Court does not find
any merit in these writ petitions and the writ petitions are
hence dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/28.01.2021
WP(C) No.6241,6643,6940,7173&7526/2020
APPENDIX OF WP(C) 6241/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED
14/06/2007 IN WPC NO. 11653/07.
EXHIBIT P2 TRUE COPY OF THE CIRCULAR BEARING NO.
363/DI/2019/STATIONERY DATED
12/06/2019.
EXHIBIT P3 TRUE COPY OF THE CIRCULAR BEARING NO.
415/DI/2019/DI/STATIONERY DATED
12/06/2019.
EXHIBIT P4 TRUE COPY OF THE CIRCULAR BEARING NO.
413/DI/2019/STATIONARY DAD 06/07/2019.
EXHIBIT P5 TRUE COPY OF THE CIRCULAR BEARING NO.
414/DI/2019/STATIONERY DATED
06/07/2019.
EXHIBIT P6 TRUE COPY OF THE PRINT OUT OF THE BOQ
(BILL OF QUANTITY) FROM THE OFFICIAL
WEBSITE OF THE RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE NOTIFICATION NO.
1308/DI/2019/STATIONERY DATED
20/10/2019.
EXHIBIT P8 A TRUE PRINT OUT OF THE DISTRICT WISE
RATE OF WASTE PAPER FOR THE PERIOD
FROM JULY 2019 TO SEPTEMBER, 2019
RECOGNISED BY THE STATISTICS
DEPARTMENT, AVAILED OF FROM ITS
OFFICIAL WEBSITE.
EXHIBIT P9 A TRUE COPY OF THE E-TENDER DETAILS
DOWN LOADED FROM THE OFFICIAL WEB
SITE.
RESPONDENTS' EXHIBITS:
EXHIBIT R1(a) A TRUE COPY OF THE LETTER
NO.E2629/2017/L.U.B DATED 01.02.2019
WP(C) No.6241,6643,6940,7173&7526/2020
APPENDIX OF WP(C) 6643/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE E-TENDER NOTICE DATED
20.10.2019.
EXHIBIT P2 A COPY OF THE BOQ SUMMERY DETAILS OF
PURCHASE AND REMOVAL OF WASTE PAPER
(KOLLAM).
EXHIBIT P3 A COPY OF THE BOQ SUMMERY DETAILS OF
PURCHASE AND REMOVAL OF WASTE PAPER
(THRISSUR)
EXHIBIT P4 A COPY OF THE BOQ SUMMERY DETAILS OF
PURCHASE AND REMOVAL OF WASTER PAPER
(PALAKKAD)
EXHIBIT P5 A COPY OF THE BOQ SUMMERY DETAILS OF
PURCHASE AND REMOVAL OF WASTE PAPER
(MALAPPURAM)
EXHIBIT P6 A COPY OF THE BOQ SUMMERY DETAILS OF
PURCHASE AND REMOVAL OF WASTE PAPER
(KOZHIKODE).
EXHIBIT P7 A COPY OF THE DISTRICT WISE RATE OF
WASTE PAPER FOR THE PERIOD FROM JULY
2019 TO SEPTEMBER 2019 IN 14
DISTRICTS.
EXHIBIT P8 A COPY OF THE TENDER SUMMARY REPORT
CANCELLING THE TENDER WITH RESPECT TO
PURCHASE AND REMOVAL OF WASTE PAPER IN
KOLLAM DISTRICT.
EXHIBIT P9 A COPY OF THE RETENDER NOTIFICATION
PUBLISHED BY THE 2ND RESPONDENT DATED
26.02.2020.
EXHIBIT P10 A COPY OF THE RETENDER DETAILS
PUBLISHED IN THE OFFICIAL WEBSITE FOR
E-TENDERING.
WP(C) No.6241,6643,6940,7173&7526/2020
APPENDIX OF WP(C) 6940/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE E-TENDER NOTICE
DATED 20.10.2019 PUBLISHED BY THE 2ND
RESPONDENT
EXHIBIT P2 A LETTER ISSUED BY THE 3RD RESPONDENT
TO THE PETITIONER DATED 25.2.2020
EXHIBIT P3 THE TRUE COPY OF THE RE-TENDER NOTICE
ISSUED BY THE 2ND RESPONDENT DATED
26.2.2020
EXHIBIT P4 THE TENDER APPROVAL LETTER DATED
25.11.2019 ISSUED BY THE KERALA STATE
LOTTERY DEPARTMENT TO THE PETITIONER.
EXHIBIT P5 THE TRUE COPY OF THE INVOICE TO ONE
JAYA CUTTING WORK, SIVAKASHI, DATED
5/2/2020 BY THE CONTROLLER FINANCE AND
ACCOUNT KERALA BOOKS AND PUBLICATIONS
SOCIETY
EXHIBIT P6 THE TRUE COPY OF THE INVOICE TO ONE
JAYA CUTTING WORK, SIVAKASHI, DATED
12/2/2020 BY THE CONTROLLER FINANCE
AND ACCOUNT KERALA BOOKS AND
PUBLICATIONS SOCIETY
WP(C) No.6241,6643,6940,7173&7526/2020
APPENDIX OF WP(C) 7173/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE E-TENDER NOTICE
DATED 20.10.2019 PUBLISHED BY THE 2ND
RESPONDENT
EXHIBIT P2 A LETTER ISSUED BY THE 3RD RESPONDENT
TO ONE OF A BIDDER PARTICIPATED IN THE
ABOVE TENDER DATED 25.02.2020
EXHIBIT P3 THE TRUE COPY OF THE RE-TENDER NOTICE
ISSUED BY THE 2ND RESPONDENT DATED
26.02.2020
EXHIBIT P4 THE TENDER APPROVAL LETTER DATED
25.11.2019 ISSUED BY THE KERALA STATE
LOTTERY DEPARTMENT TO ONE VINAYAKA
TRADERS
EXHIBIT P5 THE TRUE COPY OF THE INVOICE TO ONE
JAYA CUTTING WORK, SIVAKASHI, DATED
5/2/2020 BY THE CONTROLLER FINANCE AND
ACCOUNT KERALA BOOKS AND PUBLICATIONS
SOCIETY
EXHIBIT P6 THE TRUE COPY OF THE INVOICE TO ONE
JAYA CUTTING WORK, SIVAKASHI, DATED
12/2/2020 BY THE CONTROLLER FINANCE
AND ACCOUNT KERALA BOOKS AND
PUBLICATIONS SOCIETY
WP(C) No.6241,6643,6940,7173&7526/2020
APPENDIX OF WP(C) 7526/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE E-TENDER NOTICE
DATED 20.10.2019 PUBLISHED BY THE 2ND
RESPONDENT
EXHIBIT P2 A LETTER ISSUED BY THE 3RD RESPONDENT
TO ONE OF A BIDDER PARTICIPATED IN THE
ABOVE TENDER DATED 25.2.2020
EXHIBIT P3 THE TRUE COPY OF THE RE-TENDER NOTICE
ISSUED BY THE 2ND RESPONDENT
EXHIBIT P4 THE TENDER APPROVAL LETTER DATED
25.11.2019 ISSUED BY THE KERALA STATE
LOTTERY DEPARTMENT TO ONE VINAYAKA
TRADERS
EXHIBIT P5 THE TRUE COPY OF THE INVOICE TO ONE
JAYA CUTTING WORK, SIVAKASHI DATED
5/2/2020 BY THE CONTROLLER FINANCE AND
ACCOUNT KERALA BOOKS AND PUBLICATION
SOCIETY
EXHIBIT P6 THE TRUE COPY OF THE INVOICE TO ONE
JAYA CUTTING WORK, SIVAKASHI, DATED
12/2/2020 BY THE CONTROLLER FINANCE
AND ACCOUNT KERALA BOOKS AND
PUBLICATIONS SOCIETY
EXHIBIT P7 THE TRUE COPY OF THE INTERIM ORDER
DATED 24/04/2020 IN WRIT APPEAL NO.637
OF 2020.
EXHIBIT P8 THE TRUE COPY OF THE LETTER DATED
18/05/2020 SEND BY THE 3RD RESPONDENT.
EXHIBIT P9 A COPY OF THE AGREEMENT EXECUTED BY
THE 3RD RESPONDENT DURING THE
FINANCIAL YEAR FEBRUARY 2017-2018.
WP(C) No.6241,6643,6940,7173&7526/2020
EXHIBIT P10 THE TENDERS AWARDED TO DIFFERENT
PERSONS DURING THE FINANCIAL YEAR
2019-2020 AND THE AMOUNT ACCEPTED
RANGING FROM 24.07 RS. TO 81.99 RS.
FOR THE DISTRICTS FROM
THIRUVANANTHAPURAM TO KASARGODE DATED
06/07/2019.
EXHIBIT P11 THE TRUE COPY OF THE LAWYER NOTICE
DATED 02/06/2020.
SR
