Allowed

M/S. Durolac v. State of Kerala

Kerala HC4 Apr 2017WP(C)/22289/2016

Case brief

AI extract

What is this about?

The Court allowed the writ petition, holding that a registered micro/small enterprise is entitled to benefits including exemption from tender and earnest money deposits under relevant guidelines. It directed respondents to permit the petitioner to participate in the tender.

What did the court decide?

Writ petition allowed. Direction to respondents to permit petitioner to participate in tender and consider tender in terms of Exts.P2 and P4 orders. Steps for finalization to be taken within one month

M/S. Durolac Vs State of Kerala — Service and Employment | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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TUESDAY, THE 4TH DAY OF APRIL 2017/14TH CHAITHRA, 1939

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WP(C).No. 22289 of 2016 (I)

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PETITIONER(S):

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M/S. DUROLAC, REPRESENTED BY ITS PARTNER K.P.ANILDEV, AGED 43 YEARS, S/O KUNJUPILLAI PUSHPAN, BUILDING NO VI/161, A. DEVELOPMENT, ANGAMALY, ALUVA TALUK, ERNAKULAM DISTRICT PIN-683573.

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BY ADVS.SRI.GRASHIOUS KURIAKOSE (SR.) SRI.JOHNSON K.KURIEN SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL)

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM-695001.

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2. THE EXECUTIVE ENGINEER, KERALA PUBLIC WORKS DEPARTMENT, SPECIAL BUILDING DIVISION, THIRUVANANTHAPURAM.

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3. THE NATIONAL SMALL SCALE INDUSTRIES CORPORATION LTD., REPRESENTED BY ITS SENIOR BRANCH MANAGER, S.67, GCDA COMPLEX, MARINE DRIVE, ERNAKULAM-682031.

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4. THE CHAIRMAN, STATE LEVEL ADVISORY BOARD FOR MICRO, SMALL AND MEDIUM ENTERPRISES, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,INDUSTRIAL DEPARTMENT, THIRUVANANTHAPURAM-695001.

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R1 & R2 BY SR. GOVERNMENT PLEADER SMT. MARY BEENA JOSEPH R3 BY ADV. SRI. MILLU DANDAPANI

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 22289 of 2016 (I)

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APPENDIX

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PETITIONER(S)' --------------	EXHIBITS ---------
P1	TRUE COPY OF THE GOVERNMENT PURCHASE ENLISTMENT CERTIFICATE AND ALLOTTED PERMANENT REGISTRATION NO.NSIC/GP/COC/2015 42124 VALID UPTO 23.03.2018.
P2	TRUE COPY OF THE LETTER NO.F.NO.25(2)2011-MA DATED 14.10.2011.
P3	A TRUE COPY OF ORDER DATED 23.3.2012 ISSUED BY MICRO SMALL AND MEDIUM ENTERPRISES DEVELOPMENT ACT 2006 BY WHICH DECLARING PROCUREMENT POLICY FOR MICRO AND SMALL ENTERPRISES ORDER, 2012.
P4	TRUE COPY OF THE G.O.(P) NO.546/2013/FIN. DATED 7.11.2013.
P5	TRUE COPY OF THE TENDER NO.E50/EESB/2015-16 DATED 4.3.2016.
P6	TRUE COPY OF THE PRINTOUT OF THE DULY FILLED TENDER FORM DOWNLOADED FROM THE WEBSITE BY THE PETITIONER.
P7	TRUE COPY OF THE PRINT OUT DATED 22.6.2016 DOWNLOADED FROM THE WEBSITE.
P8	TRUE COPY OF THE COMMUNICATION DATED 15.06.2016 ISSUED BY THE 3RD RESPONDENT IN FAVOUR OF THE 2ND RESPONDENT
P9	TRUE COPY OF THE CONTRACTOR'S REGISTRATION CARD ISSUED TO THE FIRM
RESPONDENT(S)' --------------	EXHIBITS ---------
R3(A)	TRUE COPY OF THE GOVERNMENT NOTIFICATION NO.F.NO.9 (14)/2007-SSI (P)-1 ISSUED BY DEVELOPMENT COMMISSIONER, MICRO. SMALL & MEDIUM ENTERPRISES DATED 08.03.2011
R3(B)	TRUE COPY OF THE GOVERNMENT NOTIFICATION NO.F.NO.25 (2)/2011-MA ISSUED BY DEVELOPMENT COMMISSIONER, MICRO. SMALL & MEDIUM ENTERPRISE DATED 14TH OCTOBER, 2011
R3(C)	TRUE COPY OF THE GOVERNMENT ORDER NO.GO (P) NO.546/2013 FIN DATED 7.11.2013

TRUE COPY

P.S. TO JUDGE

ANU SIVARAMAN, J.

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W.P. (C) No.22289 OF 2016

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Dated this the 4^th day of April, 2017.

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J U D G M E N T

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This writ petition is filed challenging Exts.P5 and P7 communications rejecting the petitioner's tender as also for a direction to the respondents to consider the tender of the petitioner in compliance of the guidelines produced as Exts.P2 and P3 as well as Ext.P4 Government Order.

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Heard the learned counsel for the petitioner, learned Senior Government Pleader appearing for respondents 1 and 2 and the learned Standing Counsel appearing for respondents 3 and 4.

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It is submitted by the learned counsel for the petitioner that the petitioner is a small scale industrial unit registered with the 3^rd respondent and Ext.P1 is its certificate of registration. It is contended that Ext.P2 guidelines issued by the Micro, Small & Medium Enterprises, Ministry of Government of India specifically provided that small scale industrial units registered with the 3^rd respondent are entitled to certain benefits including the issue of tender sets free of

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W.P.(C) No.22289/2016

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cost, exemption from payment of earnest money and waiver of security deposit apart from price preference over the quotation of large scale units. The petitioner also relies on Ext.P3 public procurement policy for Micro and Small Enterprises 2012 as also Ext.P4 Government Order by which the Government of Kerala had specifically provided that all Government departments and public sector undertaking shall set an annual goal of procuring a minimum of 20% of their annual value of goods or services from Micro & Small Enterprises. It is submitted that preferential treatment to small scale industrial units is contemplated by the orders and that the rejection of the petitioner's tender submitted by Ext.P7 communication was not warranted.

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A statement has been filed on behalf of the 2^nd respondent contending that tenders were opened on 15.06.2016 and the petitioner's tender was rejected since the petitioner had not remitted tender fee, earnest money deposit etc. as prescribed in the notice inviting tender. It is further contended that Exts.P2 and P3 had only provided for preference in the matter of supply of manufactured goods produced in micro and small scale industries. Since tender

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W.P.(C) No.22289/2016 3

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floated by the Public Works Department was for maintenance work of a building including repair works and painting, the petitioner would not be entitled to the benefits.

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A reply affidavit has been filed by the petitioner wherein a communication of the 3^rd respondent to the Executive Engineer, PWD has been produced wherein it was specifically stated that the petitioner would be entitled to exemption from payment of earnest money, waiver of security deposit and for issue of tender sets free of cost apart from price preference upto 15%.

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An interim order was passed in this writ petition on 28.07.2016 directing the respondents to permit the petitioner to participate in the tender process subject to the result of the writ petition. It is seen from Ext.P10 produced along with the reply affidavit filed by the petitioner that the petitioner had informed the respondents of the interim order and had confirmed their willingness to undertake the work as soon as possible for the L1 rate. Thereafter, a verified petition was filed on behalf of respondents 1 and 2 contending that the work had been awarded to the lowest bidder and the stay order is standing in the way of starting of the work.

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W.P.(C) No.22289/2016

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A counter affidavit has been filed on behalf of the 3^rd respondent specifically stating that the petitioner's unit is entitled to the benefits as provided in Exts.P2 to P4 and that the rejection of the tender on the ground that the tender fee and the earnest money deposit have not been paid was unsustainable.

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I have considered the contentions advanced. It is clear from Exts.P2 to P4 that the petitioner's unit would be entitled to the benefits as has been provided including exemption from tender fee as also earnest money deposit as well as security deposit to the extent as provided in Ext.P3. It is clear from the pleadings placed on record that the tender submitted by the petitioner has been rejected at the threshold for the reason that tender fee and earnest money deposit has not been deposited by the petitioner. This stand taken by respondents 1 and 2 cannot be sustained in view of the clear directions contained in Exts.P2 to P4. Ext.P4 Government Order issued by the 1^st respondent itself provides for procuring a minimum of 20% of annual value of goods or services from Micro & Small Enterprises working within the State. These self professed policy decisions of the competent Governments

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W.P.(C) No.22289/2016

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cannot be flouted by its officers in spite of being specifically informed of the same.

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In the above view of the matter, the contentions raised by respondents 1 and 2 to the effect that the benefits provided are only for purchase of manufacture of goods also cannot be sustained. In view of the interim order dated 28.07.2016, I am of the view that the writ petition itself is to be disposed of with a direction to the respondents to permit the petitioner to participate in the tender process and to consider the tender submitted by the petitioner in terms of Exts.P2 and P4 orders. Steps for finalisation of the tender shall be taken by the 2^nd respondent within a period of one month from the date of receipt of a copy of this judgment, considering the tender submitted by the petitioner in compliance of Exts.P2 to P4 orders issued in this regard.

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The writ petition is ordered accordingly.

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sd/-

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ANU SIVARAMAN JUDGE

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smp

M/S. Durolac v. State of Kerala

Case brief

What is this about?

What did the court decide?

M/S. Durolac v. State of Kerala

Case brief

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