Quashed

Anil Kumar.v.S v. Superintending Engineer

Kerala HC12 Jul 2019WP(C)/11570/2019

Case brief

AI extract

What is this about?

The High Court quashed an order rejecting the petitioner's request to incorporate the name of his proprietary concern into his existing PWD licence, directing the department to verify proprietorship and finalize the inclusion within one month to remove arbitrariness.

What did the court decide?

Ext.P10 order quashed. Direction to incorporate the name of proprietor's concern after due enquiry and finalise within one month.

Anil Kumar.v.S Vs Superintending Engineer — Service and Employment | Kerala HC (2019)

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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 SHAJI P.CHALY

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FRIDAY, THE 12TH DAY OF JULY 2019 / 21ST ASHADHA, 1941

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WP(C).No.11570 of 2019

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PETITIONER:

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ANIL KUMAR.V.S AGED 45 YEARS S/O. VASUDEVAN NAIR, PROPRIETOR, KAILAS CONSTRUCTIONS, A CLASS GOVT. CONTRACTOR, KAIRALI NAGAR, KULATHOOR P.O, THIRUVANANTHAPURAM-695 583

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BY ADV. SRI.LIFFY P. FRANCIS

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RESPONDENTS:

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1 SUPERINTENDING ENGINEER

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PUBLIC WORKS DEPARTMENT, (ROADS AND BRIDGES) SOUTH THIRUVANANTHAPURAM-695 001.

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2 THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM-695 001.

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3 UNDER SECRETARY, PUBLIC WORKS DEPARTMENT (HEALTH),THIRUVANANTHAPURAM695 001

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4 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001

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SMT.VINEETHA.B, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.11570 of 2019

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J U D G M E N T

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This writ petition is filed by the petitioner, a

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Contractor, seeking direction to the 2^nd respondent to add and incorporate the name of proprietory concern

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of the petitioner “Kailas Contructions” in Ext.P1 licence bearing No.KA/SESC/2012-13 and renew the same and for other related and consequential reliefs. Brief material facts for the disposal of the writ petition are as follows;

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Petitioner is an 'A' Class Government

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Contractor registered with Public Works Department. Petitioner is also undertaking contract works from

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Vikram Sarabhai Space Centre and ISRO for the past

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more than 20 years. Recently, petitioner was entrusted with some other works by the Air Port Authority of

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India. At that time the Authority mandated the petitioner to have registration under the Provident Fund Act and the Employees' State Insurance Act. While those Authorities were approached for registration, it

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was informed to the petitioner that, registration

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could not be granted in his own name but can only be

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granted and issued to the proprietory concern or

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WP(C).No.11570 of 2019 3

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partnership firm or private limited company or any service societies. Thereupon, petitioner formulated a proprietory concern in the name and style “Kailas Constructions”. According to the petitioner, for the past two years, no works are undertaken in the name of the petitioner and all works are undertaken in the name of “Kailas Constructions” only. In the year 2016 licence of the petitioner was extended from 31.12.2016 to 14.2.2020. However, for the last several months petitioner is unable to undertake the civil works and constructions in the name of petitioner as is entered in Ext.P1 licence. It was thereupon that petitioner submitted an application/representation on 25.8.2016 before the 2^nd respondent Chief Engineer, Public Works Department, Thiruvananthapuram requesting them to include the name of his concern substituting the name of petitioner in Ext.P1, however, it was declined. Thereafter, in the judgment in W.P.(C) No.29147/2018 this court directed the 1^st respondent to consider the representation filed by the petitioner and to pass a speaking order. It was thereupon that,

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Ext.P10 order dated 4.2.2019 is passed, which is impugned in this writ petition.

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WP(C).No.11570 of 2019 4

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A statement is filed for and on behalf of the

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1^st respondent refuting the claims and demands raised by the petitioner. It is submitted that, there is no provision in he Kerala PWD Manual to renew the licence of an individual by adding the name of petitioner's firm also. A Contractor, who holds an individual licence can avail licence in the name of his firm only by cancelling the individual licence as per the conditions mentioned in clause 1902 to 1909 of Kerala PWD Manual. It is further submitted that, petitioner

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has taken the works in the name of “Kailas Constructions” and petitioner has not undertaken any work in his existing individual licence is not the fault of the department. It was thereupon that, Ext.P8 order was passed rejecting the request made by

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the petitioner. However, on the basis of the directions issued by this court in the writ petition specified above, petitioner was heard and a decision was taken in accordance with the provisions of the Kerala PWD Manual. Therefore, there is no illegality or arbitrariness susceptible to be interfered with by this court under Article 226 of the Constitution of India.

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WP(C).No.11570 of 2019 5

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I have heard learned counsel for petitioner, learned Government Pleader and perused the pleadings and documents on record.

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The fact discussion made above would make it clear that, the sole question to be considered is whether any manner of interference is warranted to

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Ext.P10 order passed by the 1^st respondent

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Superintending Engineer, PWD, Thiruvananthapuram. The application filed by the petitioner for incorporating the name of his proprietory concern viz., “Kailas Constructions” was rejected on the ground that, as per clause 1908.8 of PWD Manual, an individual/firm can hold only one valid contract registration at a time.

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In my considered opinion, petitioner has filed the

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application, not to issue a separate licence in the name of “Kailas Constructions” but seeking to

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incorporate the name of “Kailas Constructions” in Ext.P1 licence issued by the respondents. So far as

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re-issue of licence is concerned, it is taken care of under clause 1908.6, which stipulates that, if the original registration card is lost, the authority

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competent to issue the original registration card may, on request made by the Contractor, after enquiring the

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WP(C).No.11570 of 2019 6

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bonafides and after obtaining an indemnity bond executed from the Contractor, issue a duplicate registration card after levying a fine of Rs.500/from the contractor along with the application for the duplicate card.

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Reading the provisions altogether, it is

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categoric and clear that, a duplicate can be issued by the Authorities on making an application for issuance of the same. Petitioner is not seeking re-issue of the registration card on any of the grounds mentioned in clause 1908.6. However, the only relief sought for was

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to incorporate the name of his

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proprietory concern. Merely by incorporating the proprietory concern's name in Ext.P1 licence, there

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will not be any change in the licence issued to the petitioner since the proprietory concern is not having any separate legal existence than the proprietor. When

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the petitioner filed the application seeking the relief and when the order was passed by the 1^st respondent as per Ext.P10, there is no case for the 1^st respondent that, petitioner is not the proprietor

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of the concern sought to be incorporated. The sole concern put forth by the learned Government Pleader is

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WP(C).No.11570 of 2019 7

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in respect of clause 1908.8 that, an individual/firm can hold only one valid contract registration at a time. Merely by incorporating the name of the proprietory concern, it cannot be said that, fresh licence is issued to the petitioner.

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After evaluating the circumstances, I am of the considered opinion that, Ext.P10 order suffers from

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the vice of arbitrariness and illegality susceptible to be corrected by this court. Therefore, I quash Ext.P10 and there will be a direction to the 1^st respondent to incorporate the name of “Kailas Construction” after conducting due enquiry as to whether petitioner himself is the proprietor of the said concern and the entire exercise shall be finalised at the earliest possible time and at any rate within one month from

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the date of receipt of a copy of this judgment.

Sd/-

SHAJI P.CHALY

Smv 15.7.2019

JUDGE

WP(C).No.11570 of 2019

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE LICENCE NO. 8A/SESC/2012- 13 ISSUED TO THE PETITIONER.
EXHIBIT P2	TRUE COPY OF THE UDYOG AADHAR ISSUED BY THE MINISTRY OF MICRO SMALL AND MEDIUM
	ENTERPRISES, GOVERNMENT OF INDIA, DATED 12.4.2018.
EXHIBIT P3	TRUE COPY OF THE AFFIDAVIT DATED 22.9.2015 SWORN BY THE PETITIONER.
EXHIBIT P4	TRUE COPY OF THE CERTIFICATE ISSUED BY THE NATIONAL SMALL SCALE CORPORATION DATED 11.10.2018.
EXHIBIT P5	TRUE COPY OF THE CERTIFICATE ISSUED BY THE TAX AUTHORITIES, GOVT. OF INDIA DATED 27.12.2017.
EXHIBIT P6	THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE SUPERINTENDENT OF CUSTOMS AND CENTRAL EXCISE.
EXHIBIT P7	THE TRUE COPY OF REPRESENTATION DATED 25.8.16.
EXHIBIT P8	TRUE COPY OF THE REPRESENTATION DATED 24.10.16 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P9	TRUE COPY OF THE JUDGEMENT DATED 5.11.2018 IN W.P(C) 29147/2018 .
EXHIBIT P10	TRUE COPY OF THE ORDER DATED 4.2.2019 PASSED BY THE 1ST RESPONDENT.

Anil Kumar.v.S v. Superintending Engineer

Case brief

What is this about?

What did the court decide?

Anil Kumar.v.S v. Superintending Engineer

Case brief

What is this about?

What did the court decide?

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