Dismissed

Payyannur Labour Contract Co-Op. Society v. State of Kerala

Kerala HC15 Jul 2014WP(C)/22067/2013

Case brief

AI extract

What is this about?

The Court dismissed writ petitions challenging tender conditions and certificate denials for manual dredging work at Azheekkal Port. The judge held that petitioners had no grounds to challenge the policy protecting traditional manual dredging workers livelihoods or the refusal to issue certificates due to lack of qualifying members.

What did the court decide?

The writ petitions were dismissed stating petitioners are not entitled to any relief as fresh tenders for 2014-15 are to be called.

Payyannur Labour Contract Co-Op. Society Vs… — Public Procurement and Tenders | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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TUESDAY, THE 15TH DAY OF JULY 2014/24TH ASHADHA, 1936

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WP(C).No. 22067 of 2013 (G)

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PETITIONER(S):

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PAYYANNUR LABOUR CONTRACT CO-OP. SOCIETY LTD, REPRESENTED BY THE SECRETARY, PAYYANNUR LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD. P.O.PAYYANNUR, KANNUR - 670 307.

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BY ADV. SRI.KALEESWARAM RAJ

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF PORT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.

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2. DIRECTOR OF PORT, THIRUVANANTHAPURAM. 695 001.

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3. SENIOR PORT CONSERVATOR, AZHIKKAL 670 009.

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ADDL.R4,R5 & R6 IMPLEADED

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4. VALAPPATTANAM PUZHAORA DESNIVASI THOZHILALI KSHEMASAHAKARANA SANGHAM LIMITED NO.C 1953 KAPPAKADAVU, AZHIKKAL, KANNUR REPRESENTED BY ITS SECRETARY.

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5. VALAPATTANAM LOADING & UNLOADING WORKER'S WELFARE CO-OPERATIVE SOCIETY LIMITED, NO.C 1946, P.O.VALAPATTANAM, KANNUR REPRESENTED BY ITS PRESIDENT, SMT.P.P.MARIYATH, D/O.ABDUL KHADER, AGED 39 YEARS, RESIDING AT CLSSIC COTTAGE, PORT ROAD, AZHIKODE KANNUR -670 010.

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WP(C).No. 22067 of 2013 (G)

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6. KANNUR VANITHA CEMENT BLOCK MANUFACTURING WORKERS WELFARE CO-OPERATIVE SOCIETY LIMITED, NO.C 1970, POITHUMKADAVU, P.O.AZHIKODE, KANNUR -670 009, REPRESENTED BY ITS PRESIDENT, SMT.K.P.SAJIDA, D/O.KUNHAMMED, AGED 36 YEARS, KUNHIPURAYIL, PORT ROAD, P.O.AZHIKODE, KANNUR- 670 009.

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ADDL. R4, R5 & R6 ARE IMPLEADED AS PER ORDER DATED 30.10.2013 IN IA 1499/13 & IA.13952/2013 RESPECTIVELY

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R1-R3 BY SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL R4 BY ADV. SRI.P.C.SASIDHARAN R5 & 6 BY ADV. SRI.V.RAMKUMAR NAMBIAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-06-2014 ALONG WITH WPC. 22068/2013 AND CONNECTED CASES, THE COURT ON 15-07-2014, DELIVERED THE FOLLOWING:

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WP(C).No. 22067 of 2013 (G)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1 - TRUE COPY OF THE DHARGHAS NOTIFICATION DATED 17-8-2013 EXT.P2 - TRUE COPY OF THE GO(MS)NO.17/2010/F & PD DATED 18-3-2010 EXT.P3 - TRUE COPY OF THE GO (MS)NO.29/2012/F & PD DATED 13-4-2012 EXT.P4 - TRUE COPY OF THE GO(MS)NO.54/2013 DATED 16-8-2013

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EXT.P5 - TRUE COPY OF THE TENDER FORM

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EXT.P6 - TRUE COPY OF THE APPLICATION FOR THE YEAR 2012-2013

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EXT.P7 - TRUE COPY OF THE JUDGMENT DATED 29-9-2011 IN WA.NO.1354/2011

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EXT.P8 - TRUE COPY OF THE TENDER FORM SUBMITTED BY THE PETITIONER ON 30-8-2012

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EXT.P9- TRUE COPY OF THE PROCEEDINGS DATED 20/8/13 EXTENDING THE PERMIT UPTO 31/8/13

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EXT.P10- TRUE COPY OF THE REPRESENTATION DATED 9/9/13 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS.

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RESPONDENT(S)' EXHIBITS

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EXT.R3(A)- TRUE COPY OF COURT COMMISSION REPORT

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EXT.R3(B)- TRUE COPY OF THE GOVT.LETTER NO.13296/D1/2012/F&PD DATED 10/10/12

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EXT.R3(C)- TRUE COPY OF THE JUDGMENT OF THE HONOURABLE HIGH COURT OF KERALA IN WPC.21811/12.

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EXT.R5(A)- TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC.11010/12 DATED 17/7/12

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EXT.R5(B)- TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED BY THE JOINT REGISTRAR GENERAL, KANNUR DATED 8/3/13

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EXT.R5(C)- TRUE COPY OF THE BYE LAWS OF THE 4TH RESPNDENT SOCIETY

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EXT.R5(D)- TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE FIFTH RESPONDENT SOCIETY DATED 26/6/13 ISSUED BY THE JOINT REGISTRAR (GENERAL) KANNUR

....2/-

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WP(C).No. 22067 of 2013 (G)

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EXT.R5(E)- TRUE COPY OF THE BYE LAWS OF THE FIFTH RESPONDENT SOCIETY.

/ TRUE COPY /

P.S. TO JUDGE

A.M.SHAFFIQUE, J

W.P.C.Nos.22067 of 2013, 22068 of 2013, 22072 of 2013, 22073 of 2013, 23836 of 2013, 25714 of 2013, 25772 of 2013 & 32291 of 2013

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Dated this the 15^th day of July 2014

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J U D G M E N T

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W.P.C.Nos.25714/2013 and 25772/2013 are filed by Co-operative societies seeking a direction to the second respondent to consider the tender submitted by the petitioner for manual dredging of the Azheekkal Port for the year 2013-2014.

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The facts involved in these cases would disclose that the second respondent invited tenders for manual dredging of sand from the Port for the year 2013-14. The qualifying conditions inter alia provided that the tender has to be submitted by a Society formed under the Kerala Co-operative Societies Act and the members of the society shall be permanent residents within 10 Kms from the Port and are involved in manual dredging of sand mining. The

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W.P.C.Nos.22067 of 2013

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& Connected cases

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complaint of the petitioners is that though those are Societies situated within 2 Kms from the Port and has sufficient members involved in conventional manual dredging of sand, respondents 3 and 4 did not issue necessary certificate in terms with the tender notification, as a result of which their tender was not considered for evaluation by the 2^nd respondent. It is inter alia contended that the said action of respondents 3 and 4 is arbitrary, unjust and illegal. That apart, petitioner was informed by respondents 3 and 4 that no such certificates have been issued by them to any such societies. Under such circumstances there was no justification on the part of the second respondent to have rejected the petitioner's tender.

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By an interim order dated 29/10/2013 in W.P.C.No.25714/2013, this Court directed status quo to be maintained with reference to finalisation of the proceedings relating to the tender. Petitioner has a contention that despite the interim order of status quo, the 2^nd respondent

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W.P.C.Nos.22067 of 2013 & Connected cases

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had renewed the contract for dredging given in favour of certain societies, for which reference is made to Exts.P10 and P11.

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Statement is filed by the 4^th respondent in W.P.(C). No.25714 of 2013 inter alia stating that as per the tender conditions, the Registrar has to certify that the Society is situated within 10 Kms radius of the Port. The Registrar should further certify that 90% of the members of the society are sand workers involved in manual dredging of sand. It is stated that as far as the petitioner society is concerned, its “A” class members are the workers and employees of Western India Plywood Factory. Therefore the fourth respondent was not in a position to issue the certificate stating that 90% of the members were sand workers. Statement is filed by the second respondent inter alia stating that the tender process was carried out as per the norms contained in G.O.(MS)No.54/2013/F&PD dated 16/08/2013 produced as Ext.R2(a). Affidavit is filed by the

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W.P.C.Nos.22067 of 2013

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& Connected cases

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2^nd respondent as per directions issued by this Court on 10/12/2013 inter alia stating that on account of the status quo order, all proceedings relating to the tender were stopped. Ext P10 and P11 were issued on the basis of the decision taken at the high-level meeting held on 30/09/2013. Another high-level meeting was convened on 05/12/2013 and it was decided to permit the existing permit holders to carry on the dredging without violating the status quo order. Hence a decision was taken to renew the permit in respect of the Societies covered by Exts.P10 and P11. No statement is filed in W.P.(C) No.25772/2013.

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Having regard to the factual situation involved in the matter, the only question to be decided is whether the petitioners were entitled to get the certification, as requested by them. Perusal of Ext.R2(a) in W.P.C.No.25714/2013 indicates that a decision was taken by the Government to call for tenders based on the terms and conditions stated in the said Government order dated

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W.P.C.Nos.22067 of 2013

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& Connected cases

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16/08/2013. The norms under which the Co-operative Societies will be permitted to participate in the tender has also been specifically mentioned. It inter alia requires that the office and area of operation of the Co-operative society as per its bye-law should be within 10 Kms radius of the Port limits, at least 90% of the members of the Society should be fully involved in the activity of manual dredging in the port limits and directly experienced in manual dredging, being traditional sand dredging workers of the area and manual sand dredging should be the main means of livelihood for all the members, all the members of the society should be local residents who are traditionally making their living by manual dredging and identity card should be obtained and produced by these traditional sand workers from the local authorities. It is also indicated that only the members of the Society are permitted in the manual dredging and related works within the Port limits. If non members are engaged for the work after getting the permit, the same will be cancelled. It is also

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W.P.C.Nos.22067 of 2013

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& Connected cases

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stated that the main objective of the society should be manual dredging by which the members of the society earn their main livelihood. The date of registration/modification of the bylaw etc. of the society shall be at least 30 days before the date of quotation notice.

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W.P.(C) No.32291/2013 is filed by a Society challenging the action of Senior Port Conservator in giving the contract for manual dredging to another Society which was involved in dredging during the year 2012-2013.

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In W.P.(C) Nos.22067 of 2013, 22068 of 2013, 22072 of 2013, 22073 of 2013 and 23836 of 2013, the petitioners are certain Societies who challenge the tender conditions prescribed by the second respondent while calling for tenders. The objectionable tender conditions are as under:

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“1. The office and area of operation of the Co-operative Society as per its bylaw, should be within 10 Kms radius of the Port limits.

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W.P.C.Nos.22067 of 2013

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& Connected cases

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2. At least 90% of the members of the society should be fully involved in the activity of manual dredging in the port limits and directly experienced in manual dredging, being traditional sand dredging workers of the area and manual sand dredging should be the main means of livelihood for all the members.

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3. All the members of the society should be local residents who are traditionally making their living by manual dredging. An Identity Card should be obtained and produced by these traditional sand workers from the local authorities.

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4. Only the members of the society are permitted in the manual dredging and related works (loading and unloading, purification, cleaning works etc) within the port limits. If non members are engaged for the work after getting the permit and the Co-operative Society acts as an employer, then the permit will be cancelled without notice.”

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In these writ petitions counter affidavit is filed by

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the respondents inter alia contending that there are only 20 zones for manual dredging in the said area and when

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W.P.C.Nos.22067 of 2013 & Connected cases

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tenders were invited for manual dredging in the year 2011-12, there were 71 applicants of which only 20 of them could be given award of work.

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Having regard to these factual situations, it was noticed that the benefit of manual dredging should be given only to persons conventionally engaged in manual dredging operation and who carries on the said job for their livelihood. It was decided that only such persons who form a Co-operative society will be given the right to carry on manual dredging and therefore the Government thought it fit to bring in such restrictions so that only persons who are eligible and whose livelihood is from manual dredging operations will get the benefit of the work to be allotted. Therefore it is contended that there is no arbitrariness or illegality in incorporating such conditions in the tender and it is only to restrict such societies from among the members involved in manual dredging of sand to be given the work.

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W.P.C.Nos.22067 of 2013

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& Connected cases

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The learned Government Pleader further points out that the tender conditions for manual dredging in all major ports of Kerala are being revised and new tender for granting permission for manual dredging for the next year is planned to be floated in September 2014.

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As far as the challenge to the tender conditions are concerned, first of all it is not open for a tenderer to challenge the tender conditions. The Government in their counter affidavit has clearly indicated the reason for bringing any such provisions. The whole intention is to permit only societies who has as its members, people engaged in manual dredging operations and treat it as their livelihood from getting the benefits of the work. Viewed in such a manner, there cannot be any doubt regarding the policy of the Government to provide the work to conventional manual dredging workers so that their livelihood should not be affected by permitting others coming into the field of carrying on such operations. In the

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W.P.C.Nos.22067 of 2013 & Connected cases

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said circumstances I do not think that the petitioners can challenge the provisions of notice inviting tender or the Government order on the basis of which such conditions have been incorporated.

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In W.P.(C)Nos.25714/2013 and 25772/2013, the petitioners’ complaint is only with reference to the denial of the appropriate certificate which they have claimed. Apparently, if the society is not formed by persons involved in manual dredging operations it may not be possible for the Registrar to issue such a certificate. Issuance of such certificates depends upon the factual circumstances involved in the matter. In the absence of any material to indicate that the petitioner society is formed as a society of manual dredging employees or workmen or at least 90% of them are involved in manual dredging operations and eke out their livelihood out of the same, it may not be possible for the Registrar to issue such a certificate. For that reason itself, in the absence of any such material to suggest

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W.P.C.Nos.22067 of 2013

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& Connected cases

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formation of a society as envisaged as per Ext. P1, this Court cannot interfere with the decision of the Registrar in that regard. But is needless to state that the Registrar has to make such an enquiry based on the bye-law of the Society as well as other documents and an appropriate reply ought to have been issued in the matter.

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Having regard to these factual situations and especially on account of the fact that for the year 2014-15 tender conditions are to be finalised by the Government and its authorities, I do not think that the petitioners are entitled for any relief in these writ petitions.

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It is pointed out by the learned counsel for the petitioner in W.P.C.No.25714 of 2013 that tenders were awarded in favour of certain persons violating the order of status quo. Same is the contention taken in W.P.(C) No.32291/2013. First of all, the order of status quo was only with reference to the finalisation of the tender. Tenders invited as per Ext.P1 was not finalised. What has been done

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W.P.C.Nos.22067 of 2013

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& Connected cases

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was only permitting the earlier Contractors to continue in terms of Exts.P10 and P11. Hence I do not prima facie think that the respondent authorities have ignored the order of status quo or has acted against the said order. At any rate, if at all the petitioner has any grievance, it shall always be open for the petitioner to take appropriate proceedings in accordance with law.

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However, as far as the present writ petitions are concerned, the petitioners are not entitled for any relief especially in view of the fact that fresh tenders are to be called for with reference to 2014-2015 contracts.

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In the result, these writ petitions are dismissed.

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(sd/-)

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(A.M.SHAFFIQUE, JUDGE)

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jsr

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W.P.C.Nos.22067 of 2013 13 & Connected cases

Payyannur Labour Contract Co-Op. Society v. State of Kerala

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Payyannur Labour Contract Co-Op. Society v. State of Kerala

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