Seven writ petitions by an MSME unit and its managing partner whose tenders for PWD painting and repair works were rejected for not paying EMD, security deposit and performance guarantee. The court held the works were mainly civil works, that the Government clarification excluded MSME exemptions for civil contracts, and dismissed the petitions.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 12TH DAY OF OCTOBER 2021 / 20TH ASWINA, 1943 WP(C) NO. 606 OF 2021
PETITIONER/S:
K.P.ANILDEV AGED 47 YEARS PARTNER, DUROLAC, BUILDING NO. VI/161, A DEVELOPMENT, ANGAMAY, ALUVA TALUK, ERNAKULAM DISTRICT, PIN-683 573 BY ADV SEBASTIAN JOSEPH (KURISUMMOOTTIL)
RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM-695 001 2 THE SUPERINTENDING ENGINEER, KERALA PUBLIC WORKS DEPARTMENT, BUILDING DIVISION, NORTH CIRCLE, KOZHIKODE, PIN-673 001 3 THE SUPERINTENDING ENGINEER, KERALA PUBLIC WORKS DEPARTMENT, BUILDING DIVISION, NORTH CIRCLE, KOZHIKODE, PIN-673 001 4 THE NATIONAL SMALL INDUSTRIES CORPORATION LTD. (NSIC), REPRESENTED BY ITS SENIOR BRANCH MANAGER, S.67, GCDA COMPLEX, MARINE DRIVE, ERNAKULAM-682 031 BY ADV SRI.MILLU DANDAPANI
OTHER PRESENT:
SRI.K.V.MANOJ KUMAR, SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.10.2021, ALONG WITH WP(C).4353/2021, 4420/2021 AND CONNECTED CASES, THE COURT ON 12.10.2021 DELIVERED THE FOLLOWING:
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 12TH DAY OF OCTOBER 2021 / 20TH ASWINA, 1943
WP(C) NO. 4353 OF 2021
PETITIONER/S:
DUROLAC
BUILDING NO. VI/161 A, DEVELOPMENT, ANGAMALY, ALUVA TALUK, ERNAKULAM DISTRICT, PIN 683573, REPRESENTED BY ITS MANAGING PARTNER K.P ANILDEV
BY ADV SEBASTIAN JOSEPH (KURISUMMOOTTIL)
RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM 695 001 2 THE EXECUTIVE ENGINEER, KERALA PUBLIC WORKS DEPARTMENT, BUIDLINGS DIVISION, THIRUVANANTHAPURAM 695 033
3 THE NATIONAL SMALL INDUSTRIES CORPORATIONLTD (NSIC) REPRESENTED BY ITS SENIOR BRANCH MANAGER, S.67, GCDA COMPLEX, MARINE DRIVE, ERNAKULAM 682 031 4 JAYARAM V.R, KRISHNAKRIPA, VADAKKEPPURATH, POTTASSERY POST, PALAKKAD DISTRICT, PIN 678 598 BY ADVS. SRI.K.V.MANOJ KUMAR, SR.GP SRI.MILLU DANDAPANI SRI.K.I.MAYANKUTTY MATHER SMT.UTHARA ASOKAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.10.2021, ALONG WITH WP(C).606/2021 AND CONNECTED CASES, THE COURT ON 12.10.2021 DELIVERED THE FOLLOWING:
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 12TH DAY OF OCTOBER 2021 / 20TH ASWINA, 1943
WP(C) NO. 4420 OF 2021
PETITIONER/S:
DUROLAC
BUILDING NO. VI/161, A. DEVELOPMENT, ANGAMALY, ALUVA TALUK, ERNAKULAM DISTRICT, PIN-683 573, REPRESENTED BY ITS MANAGING PARTNER, K.P. ANILDEV. BY ADV SEBASTIAN JOSEPH (KURISUMMOOTTIL)
RESPONDENT/S:
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 5.10.2021, ALONG WITH WP(C).606/2021 AND CONNECTED CASES, THE COURT ON 12.10.2021 DELIVERED THE FOLLOWING:
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 12TH DAY OF OCTOBER 2021 / 20TH ASWINA, 1943
WP(C) NO. 4363 OF 2021
PETITIONER/S:
DUROLAC BUILDING NO.VI/161, A DEVELOPMENT, ANGAMALY, ALUVA TALUK, ERNAKULAM DISTRICT, PIN-683573, REPRESENTED BY ITS MANAGING PARTNER K P ANILDEV. BY ADV SEBASTIAN JOSEPH (KURISUMMOOTTIL)
RESPONDENT/S:
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 5.10.2021, ALONG WITH WP(C).606/2021 AND CONNECTED CASES, THE COURT ON 12.10.2021 DELIVERED THE FOLLOWING:
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 12TH DAY OF OCTOBER 2021 / 20TH ASWINA, 1943
WP(C) NO. 4701 OF 2021
PETITIONER/S:
DUROLAC
BUILDING NO. VI/161, A, DEVELOPMENT, ANGAMALY, ALUVA TALUK, ERNAKULAM DISTRICT, PIN - 683573, REPRESENTED BY ITS MANAGING PARTNER K.P. ANILDEV. BY ADV SEBASTIAN JOSEPH (KURISUMMOOTTIL)
RESPONDENT/S:
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 5.10.2021, ALONG WITH WP(C).606/2021 AND CONNECTED CASES, THE COURT ON 12.10.2021 DELIVERED THE FOLLOWING:
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021
6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 12TH DAY OF OCTOBER 2021 / 20TH ASWINA, 1943
WP(C) NO. 4692 OF 2021
PETITIONER/S:
DUROLAC BUILDING NO.VI/171, A.DEVELOPMENT, ANGAMALY, ALUVA TALUK, ERNAKULAM DISTRICT, PIN - 685 573, REPRESENTED BY ITS MANAGING PARTNER K.P.ANILDEV. BY ADV SEBASTIAN JOSEPH (KURISUMMOOTTIL)
RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM - 695 001. 2 THE EXECUTIVE ENGINEER KERALA PUBLIC WORKS DEPARTMENT, BUILDINGS DIVISION, CIVIL STATION, ALAPPUZHA - 688 001. 3 THE NATIONAL SMALL INDUSTRIES CORPORATION LTD. (NSIC) REPRESENTED BY ITS SENIOR BRANCH MANAGER, S.67, GCDA COMPLEX, MARINE DRIVE, ERNAKULAM - 682 031. 4 JAYARAM V.R. KRISHNAKRIPA, VADAKKEPURATH, POTTASSERY POST, PALAKKAD DISTRICT, PIN- 678 598. BY ADVS. GOVERNMENT PLEADER, SRI.K.V.MANON KUMAR, SR.GP SRI.MILLU DANDAPANI SRI.K.I.MAYANKUTTY MATHER SRI.R.JAIKRISHNA SMT.UTHARA ASOKAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 5.10.2021, ALONG WITH WP(C).606/2021 AND CONNECTED CASES, THE COURT ON 12.10.2021 DELIVERED THE FOLLOWING:
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021
7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 12TH DAY OF OCTOBER 2021 / 20TH ASWINA, 1943
WP(C) NO. 7531 OF 2021
PETITIONER/S:
DUROLAC BUILDING NO.VI/161, A.DEVELOPMENT, ANGAMALY, ALUVA TALUK, ERNAKULAM DISTRICT, PIN-683573, REPRESENTED BY ITS MANAGING DIRECTOR K.P.ANILDEV. BY ADV SEBASTIAN JOSEPH (KURISUMMOOTTIL)
RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM-695001. 2 THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, (P.W.D.), BUILDINGS DIVISION, EDAPPALLY, ERNAKULAM-682024. 3 THE NATIONAL SMALL INDUSTRIES CORPORATION LTD., (NSIC), REPRESENTED BY ITS SENIOR BRANCH MANAGER, S.67, GCDA COMPLEX, MARINE DRIVE, ERNAKULAM-682031. 4 PRAMOD SIBY, ANDALATT HOUSE, KESARI COLLEGE ROAD, NORTH PARAVUR POST, ERNAKULAM, KOCHI-683513. BY ADVS. SRI.K.V.MANOJ KUMAR, SR.GP, SRI.MILLU DANDAPANI SRI.K.I.MAYANKUTTY MATHER SRI.R.JAIKRISHNA SRI.K.V.MANOJ KUMAR, SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 5.10.2021, ALONG WITH WP(C).606/2021 AND CONNECTED CASES, THE COURT ON 12.10.2021 DELIVERED THE FOLLOWING:
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021
8
P.V.KUNHIKRISHNAN, J
W.P.(C.) Nos. 606, 4353, 4363, 4420, 4692, 4701 & 7531 of 2021
Dated this the 12th day of October, 2021
JUDGMENT
These seven writ petitions are connected and therefore I am disposing of all these writ petitions by a common judgment.
filed by the DUROLAC, represented by its Managing Partner, K.P.Anil Dev. W.P.(C)No.606/2021 is filed by Mr.K.P.Anil Dev who is the Managing partner of DUROLAC. DUROLAC is a duly registered Micro Small and Medium Enterprise unit (for short 'M.S.M.E unit') manufacturing paints and allied products. The unit provides service in connection with the products manufactured by the units including painting and allied works. It is the case of the petitioner that, since DUROLAC is an M.S.M.E unit, the same is eligible for certain incentives while participating in tenders for public procurements. The
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021 9
petitioner's unit is relying on Exts.P3 to P5 which are produced in W.P.(C)No.4420/2021. These documents are produced in the other writ petitions also. (Hereafter I will refer to the Exhibits produced in W.P.(c) No.4420/2021) The incentives as per the above orders include exemption from Earnest Money Deposit (EMD), Waiver of the Security deposit, Tender set free of cost, etc. Ext.P10 produced in these writ petitions(except in W P (c) No.606/2021) are different tender notices issued by different authorities of the Kerala Public Works Department. Exhibit P9 is the tender notice produced in W P(c) No.606/2021 which is issued by the Executive Engineer, PWD Building Division, Kozhikode. The petitioners in these writ petitions submitted tender based on the respective tender notices produced in these writ petitions and they claimed the benefit of incentives extended to M.S.M.E unit. The tender submitted by the petitioners is rejected by the authorities concerned mainly for the reason that Ext.P12 Government Order issued by the Finance department clarified that the incentives to M.S.M.E unit extended by the State and the Central Government are not applicable for civil/electrical/infrastructure contracts.
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021 10
Aggrieved by the same, these writ petitions are filed.
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021 11
issued by the Ministry of Micro Small and Medium Enterprise(MSME), Office of the development commissioner dated 23.03.2012 and it is Public Procurement Policy for Micro Small and Medium Enterprises (MSMEs) order 2012. The State Government was pleased to extend the benefit of Ext.P4 public procurement policy to the Micro and Small Enterprises in Kerala registered with National Small Industries Corporation by Ext.P5 Government Order. It is the case of the petitioner that, in the year 2016, the tender for similar nature of work submitted by the petitioner before the Public Works Department was rejected at the threshold for remittance of tender fee and earnest money deposit. This Court interfered with the same as per Exts.P6 and P7 judgments. Exts.P8 and P9 are certain clarifications issued by the Government of Kerala. The learned counsel takes me through the tender notice produced in these writ petitions and submitted that it is not a work contract. According to the learned counsel, Ext.P12 Government Order does not apply to the MSME unit of the petitioner because the petitioner is not doing any work contract in these cases. It is the case of the petitioners that the
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021 12
respondents intend to find out an excuse to eliminate the units like the petitioners from participating in the tender proceedings. Therefore, these writ petitions are filed challenging the order rejecting the tender of the petitioner in different works mentioned in these writ petitions relying on GO(P)No.1/2021/Fin dated 03.01.2021 alleging that it is a civil contract. The learned counsel submitted that a perusal of works mentioned in the tender notice mentioned in these writ petitions will show that these are not civil/electrical/ infrastructure contracts and therefore, the petitioners are entitled to the benefit as an M.S.M.E unit. This is the sum and substance of the argument of the petitioners.
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021 13
The learned Government Pleader takes me through the works mentioned in Ext.P10 tender notices produced in these writ petitions and submitted that the work involved is mainly civil works. Hence the learned Government Pleader submitted that, in the light of Ext.P12 Government Order, the petitioners are not entitled to the benefit of Ext.P4 order.
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021 14
submitted that the M.S.M.E units are entitled to the benefits as per Ext.P4 order if the works come within the purview of the same.
deposit/performance guarantee granted to MSME units as per Exts.P4 and P5. It will be better to extract the works notified in
the respective tender notice in these writ petitions. The name of the work mentioned in the notice inviting tenders in these writ petitions are extracted hereunder :
| Sl.No. | W.P.(C.) No. | Work mentioned in the notice inviting tender |
|---|---|---|
| 1 | _W.P.(C) No. 4420/2021 _ | Painting Outside & common areas (From Ground floor to Sixthfloor) of the Vikas Bhavan Building. |
| 2 | W.P.(C) No. 606/2021 | Special Repair work to Model Polytechnic College, Vadakara-Painting and other Repair works |
| 3 | _W.P.(C) No. 7531/2021 _ | GMC EKM External painting of Block C&D, E building |
| 4 | _W.P.(C) No. 4353/2021 _ | RIO (Regional Institute of Ophthalmology), Thiruvananthapuram – Painting and Repair of IP Block, OT Block and Administrative Block. |
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021
15
| 5 | _W.P.(C) No. 4692/2021 _ | Special Repairs of IHRD College of Engineering, Chengannur |
|---|---|---|
| 6 | _W.P.(C) No. 4363/2021 _ | Government Analytical Laboratory, Thiruvananthapuram – Painting and allied works at Government Analytical Lab, Thiruvananthapuram |
| 7 | _W.P.(C) No. 4701/2021 _ | PWD-Sainik School Kazhakkuttam – Full outside painting, inside painting of sleeping area blocks and leakproofing of corridors in Patel Block |
i) “Issue of tender sets free of cost; ii) Exemption from payment of Earnest Money.
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021
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iii) Waiver of Security Deposit up to the Monetary Limit for which at the unit is registered.
iv) Price preference up to 15% over the quotation of large-scale units; and
v) In addition to the above 358 items are reserved. for exclusive purchase from MSE Sector.”
17
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021
respondents that the petitioner is not entitled to the benefits available to MSME units. But, Ext.P6 judgment is dated 30.6.2017. After that, Ext.P8 order of the State Government came into force, in which it is informed the Chief Engineer, PWD that price procurement policy of Government of India shall be made applicable to MSME working within the State and registered with National Small Industries Corporation. Ext.P9 is a letter from the Principal Secretary (Finance) to the petitioner, in which also, it is stated that provision to exempt MSMEs from tender fee and EMD is in the public procurement policy of the Government of India and is adopted by all the States including Kerala. Therefore, it is clear that the benefits available to MSME units are based on the public procurement policy of the Government of India. When there was a doubt arises in this regard, the Government of Kerala issued Ext.P12 clarification dated 03.01.2021, in which it is clearly stated that the exemption regarding the earnest money/security deposit/performance guarantee granted to MSMEs, vide Government order dated 7.11.2013 is not applicable for civil/electrical/infrastructure contracts. It is also stated that
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021
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earnest money deposit/security deposit/performance guarantee plays a vital role in civil works in confirming satisfactory execution of contract over a considerable time period as well as in ensuring quality of work. Therefore, it is clear that the benefits available to MSME units are based on the procurement policy of the Government of India. The benefit is not available to work contracts, which is clarified in Ext.P12.
“60. Coming to the stand and stance of the State of Haryana, as put forth by Mr. Mishra, the same suffers from two basic fallacies, first, the supply and installation of lift treating it as a contract for sale on the basis of the overwhelming component test, because there is a stipulation in the contract that the customer is obliged to undertake the work of civil construction and the bulk of the material used in
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021
19
construction belongs to the manufacturer, is not correct, as the subsequent discussion would show; and second, the notification dated 17th May, 2010 issued by the Government of Haryana, Excise and Taxation Department, whereby certain rules of the Haryana Value Added Tax Rules, 2003 have been amended and a table has been annexed providing for “Percentages for Works Contract and Job Works” under the heading “Labour, service and other like charges as percentage of total value of the contract” specifying 15% for fabrication and installation of elevators (lifts) and escalators, is self - contradictory, for once it is treated as a composite contract invoking labour and service as a natural corollary, it would be works contract and not a contract for sale. To elaborate, the submission that the element of labour and service can be deducted from the total contract value without treating the composite contract as a works contract is absolutely fallacious. In fact, it is an innovative subterfuge. We are inclined to think so as it would be frustrating the constitutional provision and, accordingly, we unhesitatingly repel the same.”
12. Similarly, in Larsen and Toubro Ltd. v. State of
Karnataka [2014 (1) SCC 708], the Apex Court opined like
this :
“72. In our opinion, the term 'works contract' in Article 366(29-A)(b) is amply wide and cannot be confined to a particular understanding of the term or to a particular form. The term encompasses a wide range and many varieties of contract. Parliament had such wide meaning of “works contract” in its view at the time of the Forty-sixth Amendment. The object of insertion of clause 29-A in Article 366 was to enlarge the scope of the expression “tax on sale or purchase of goods” and overcome Gannon Dunkerley. Seen thus, even if in a contract, besides the obligations of supply of goods and materials and performance of labour and services, some additional obligations are imposed, such contract does not cease to be works contract. The additional obligations in the contract would not alter the nature of contract so long as the contract provides for a contract for works and
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021
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satisfies the primary description of works contract. Once the characteristics or elements of works contract are satisfied in a contract then irrespective of additional obligations, such contract would be covered by the term 'works contract'. Nothing in Article 366(29-A)(b) limits the term “works contract” to contract for labour and service only. Learned Advocate General for Maharashtra was right in his submission that the term “works contract” cannot be confined to a contract to provide labour and services but is a contract for undertaking or bringing into existence some “works”. We are also in agreement with the submission of Mr. K.N. Bhat that the term “works contract” in Article 366(29-A)(b) takes within its fold all genre of works contract and is not restricted to one specie of contract to provide for labour and services alone. Parliament had all genre of works contract in view when clause 29-A was inserted in Article 366.”
Toubro's case (supra) was considered by the Apex Court in Commissioner of Central Excise and Customs, Kerala v. Larsen & Toubro Ltd. [2016 (1) SCC 170]. Keeping in mind the above decisions, I considered the works mentioned in the tender notice. According to me, the works mentioned in the tender notices produced in these writ petitions are mainly civil works. If that is the case, according to me, in the light of Ext.P12, Government Order, the petitioner- MSME unit is not entitled to the benefits of Exts.P4 and P5. Consequently, the rejection of the tender of the petitioners in these tender notices
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021 21
for non-payment of the earnest money deposit/security deposit/performance guarantee, etc. are perfectly justified especially in the light of Ext.P12, Government Order.
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021 22
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021 23
interfere with the action of the official respondents. Therefore, these writ petitions fail and they are
accordingly dismissed.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE
DM SKS JV
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021
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APPENDIX OF WP(C) 606/2021
| PETITION | ER EXHIBITS | |
|---|---|---|
| EXHIBIT | P1 | TRUE COPY OF THE CERTIFICATE ISSUED BY THE NSIC-REF NO. NSIC/GP/COC/2015/42124 DATED 24.06.2020. |
| EXHIBIT | P2 | TRUE COPY OF THE UDYAM REGISTRATION NUMBER UDYAM KL 02-0001988. |
| EXHIBIT | P3 | TRUE COPY OF THE COMMUNICATION BY LETTER NO. F. NO. 25(2)2011-MA DATED 14.10.2011 |
| EXHIBIT | P4 | TRUE COPY OF PUBLIC PROCUREMENT POLICY FOR MICRO AND SMALL ENTERPRISES ORDER, 2012 DATED 23.3.2012 CONFERRED BY SECTION 11 OF THE MICRO SMALL AND MEDIUM ENTERPRISES DEVELOPMENT(MSME) ACT, 2006. |
| EXHIBIT | P5 | TRUE COPY OF THE G.O(P) NO. 546/2013/FIN. DATED 07.11.2013. |
| EXHIBIT | P6 | TRUE COPY OF JUDGMENT DATED 30.06.2017 IN W.A. NO. 1358/2017 OF THIS HON'BLE COURT. |
| EXHIBIT | P7 | TRUE COPY OF THE JUDGMENT DATED 4.4.2017 IN W.P.C NO. 22289/2016 OF THIS HON'BLE COURT. |
| EXHIBIT | P8 | TRUE COPY OF THE CLARIFICATION DATED 3.12.2017 ISSUED BY THE PRINCIPAL SECRETARY(FINANCE). |
| EXHIBIT | P9 | TRUE COPY OF THE TENDER NOTICE NO. PWD/2020-21/11511/KKD DATED 29.12.2020. |
| EXHIBIT | P10 | TRUE COPY OF THE OFFICE MEMORANDUM NO. D B3/GENERAL/2020 DATED 4.8.2020 ISSUED BY THE 3RD RESPONDENT. |
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021 25
APPENDIX OF WP(C) 4353/2021
| PETITIONER EXHIBITS | |
|---|---|
| EXHIBIT P1 | TRUE COPY OF THE CERTIFICATE ISSUED BY THE NSIC-REF NO. NSIC/GP/COC/2015/42124 DATED 24-06-2020 |
| EXHIBIT P2 | TRUE COPY OF THE UDYAM REGISTRATION NUMBER UDYAM-KL-02-0001988 |
| EXHIBIT P3 | TRUE COPY OF THE COMMUNCIATION BY LETTER NO. F.NO. 25(2)2011-MA DT 14-10-2011 |
| EXHIBIT P4 | TRUE COPY OF PUBLIC PROCUREMENT POLICY FOR MICRO AND SMALL ENTERPRISES ORDER , 2012 DATED 23-3-2012 CONFERRED BY SECTION 11 OF THE MICRO SMALL AND MEDIUM ENTERPRISES DEVELOPMENT (MSME) ACT, 2006 |
| EXHIBIT P5 | TRUE COPY OF THE G.O(P) NO. 546/2013/FIN DATED 07-01-2013 |
| EXHIBIT P6 | TRUE COPY OF JUDGMENT DATED 30-06-2017 IN W.A NO. 1358/2017 OF THIS HON'BLE COURT. |
| EXHIBIT P7 | TRUE COPY OF THE JUDGMENT DATED 4-4-2017 IN W.P(C) 22289/2016 OF THIS HONOURABLE COURT. |
| EXHIBIT P8 | TRUE COPY OF THE CLARIFICATIOND ATED 3-12- 2017 ISSUED BY THE PRINCIPAL SECRETARY (FINANCE) |
| EXHIBIT P9 | TRUE COPY OF THE ORDER NO. PU A2/109/2017/FIN DATED 9-08-2018 ISSUED IN FAVOUR OF THE PETITIONER. |
| EXHIBIT P10 | TRUE COPY OF THE TENDER NOTICE NO. PWD/2020-2021/11698/TVM DATED 6-1-2021 |
| EXHIBIT P11 | TRUE COPY OF THE TENDER SUMMARY REPORT DATED 12-2-2021 |
| EXHIBIT P12 | TRUE COPY OF THE G.O(P) NO. 1/2021/FIN DATED TVPM DATED 3-1-2021 |
| RESPONDENT EXHIBITS | |
| Exhibit R4(A) | TRUE COPY OF THE JUDGMENT IN WPC NO. 7201/2015 OF THE HON'BLE HIGH COURT, NEW DELHI |
| Exhibit R4(b) | TRUE COPY OF THE BID DOCUMENT FOR THE SUBJECT WORK "RIO (REGIONAL INSTITUTE OF OPHTHALMOLOGY )THIRUVANANTHAPURAM PAINTING |
| AND REPAIR OF IP BLOCK, OT BLOCK AND ADMINISTRATIVE BLOCK" |
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021
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APPENDIX OF WP(C) 4420/2021
PETITIONER EXHIBITS
| EXHIBIT P2 | TRUE COPY OF THE UDYAM REGISTRATION NUMBER UDYAM-KL-02-0001988 |
|---|---|
| EXHIBIT P3 | TRUE COPY OF THE COMMUNICATION BY LETTER NO. F. NO. 25(2) 2011-MA DT. 14.10.2011. |
| EXHIBIT P4 | TRUE COPY OF THE PUBLIC PROCUREMENT POLICY FOR MICRO AND SMALL ENTERPRISES ORDER, 2012 DATED 23.2.2012 CONFERRED BY SECTION 11 OF THE MICRO SMALL AND MEDIUM ENTERPRISES DEVELOPMENT (MSME) ACT, 2006. |
| EXHIBIT P5 | TRUE COPY OF THE G.O(P) NO. 546/2013/FIN. DATED 07.11.2013. |
| EXHIBIT P6 | TRUE COPY OF JUDGMENT DATED 30.06.2017 IN W.A. NO. 1358/2017 OF THIS HON'BLE COURT. |
| EXHIBIT P7 | TRUE COPY OF THE JUDGMENT DATED 4.4.2017 IN W.P.C NO. 22289/2016 OF THIS HON'BLE COURT. |
| EXHIBIT P8 | TRUE COPY OF THE CLARIFICATION DATED 3.12.2017 ISSUED BY THE PRINCIPAL SECRETARY (FINANCE). |
| EXHIBIT P9 | TRUE COPY OF THE ORDER NO. PU- A2/109/2017/FIN. DATED 9.8.2018 ISSUED IN FAVOUR OF THE PETITIONER. |
| EXHIBIT P10 | TRUE COPY OF THE TENDER NOTICE NO. PWD/2020-2021/12368/TVM DATED 1.2.2021. |
| EXHIBIT P11 | TRUE COPY OF THE TENDER SUMMARY REPORT DATED 12.2.2021. |
| EXHIBIT P12 | TRUE COPY OF THE G.O(P) NO. 1/2021/FIN. DATED TVPM. 3.1.2021. |
| RESPONDENT EXHIBITS | |
| Exhibit R4(a) | A TRUE COPY OF THE CONTRACTOR'S REGISTRATION CARD ISSUED TO THE PETITIONER DATED . 31.3.2020 |
| Exhibit R4(b) | A TRUE COPY OF THE CERTIFICATE ISSUED BY THE NSIC ISSUED TO THE PETITIONER DATED . 6.2.19 |
| Exhibit R4(c) | A TRUE COPY OF THE UDYAM REGISTRATION CERTIFICATE ISSUED TO THE PETITIONER DATE 27/9/20 |
| Exhibit R4(d) | A TRUE COPY OF THE SELECTION NOTICE ISSUED BY THE SECOND RESPONDENT DATED 12.2.2021 |
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021 27 Exhibit R4(e) A TRUE COPY OF THE PRICE SCHEDULE QUOTED BY THE RESPONDENT Exhibit R4(f) A TRUE COPY OF THE PRICE SCHEDULE QUOTED BY THE PETITIONER. ANNEXURE R2(A) TRUE COPY OF THE RELEVANT PAGE OF BID DOCUMENT
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021
28
APPENDIX OF WP(C) 4363/2021
PETITIONER EXHIBITS
| EXHIBIT P1 | TRUE COPY OF THE CERTIFICATE ISSUED BY THE NSIC -REF NO.NSIC/GP/COC/2015/42124 DATED 24.06.2020. |
|---|---|
| EXHIBIT P2 | TRUE COPY OF THE UDYAM REGISTRATION NUMBER UDYAM-KL-02-00001988. |
| EXHIBIT P3 | TRUE COPY OF THE COMMUNICATION BY LETTER NO.F.NO. 25(2)2011-MA DATED 14.10.2011. |
| EXHIBIT P4 | TRUE COPY OF THE PUBLIC PROCUREMENT POLICE FOR MICRO AND SMALL ENTERPRISES ORDERS, 2012 DATED 23/3/2012 CONFERRED BY SECTION 11 OF THE MICRO SMALL AND MEDIUM ENTERPRISES DEVELOPMENT (MSME) ACT, 2006. |
| EXHIBIT P5 | TRUE COPY OF THE GO(P) NO. 546/2013/FIN DATED 07/11/2013. |
| EXHIBIT P6 | TRUE COPY OF THE JUDGMENT DATED 30.06.2017 IN WA NO. 1358/2017 OF THIS HON'BLE COURT. |
| EXHIBIT P7 | TRUE COPY OF THE JUDGMENT DATED 4/4/2017 IN WPC NO.22289/2016 OF THIS HONOURABLE COURT. |
| EXHIBIT P8 | TRUE COPY OF THE CLARIFICATION DATED 3/12/2017 ISSUED BY THE PRINCIPAL SECRETARY (FINANCE). |
| EXHIBIT P9 | TRUE COPY OF THE ORDER NO PU- A2/109/2017/FIN DATED 9/8/2018 ISSUED IN FAVOUR OF THE PETITIONER. |
| EXHIBIT P10 | TRUE COPY OF THE TENDER NOTICE NO.PWD/2020-2021/12367/TVM DATED 1/2/2021. |
| EXHIBIT P11 | TRUE COPY OF THE TENDER SUMMARY REPORT DATED 12.2.2021. |
| EXHIBIT P12 | TRUE COPY OF THE GO(p) NO. 1/2021.FIN DATED TVPM. DATED 3/1/2021. |
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021
29
APPENDIX OF WP(C) 4701/2021
PETITIONER EXHIBITS
| EXHIBIT P1 | TRUE COPY OF THE CERTIFICATE ISSUED BY THE NSIC -REF. NO. NSIC/GP/COC/2015/42124 DATED 24.06.2020. |
|---|---|
| EXHIBIT P2 | TRUE COPY OF THE UDYAM REGISTRATION NUMBER UDAYM-KL-02-0001988. |
| EXHIBIT P3 | TRUE COPY OF THE COMMUNICATION BY LETTER NO.F. NO. 25(2) 2011-MA DT.14/10/2011. |
| EXHIBIT P4 | TRUE COPY OF THE PUBLIC PROCUREMENT POLICY FOR MICRO AND SMALL ENTERPRISES ORDER, 2012 DATED 23.03.2012 CONFERRED BY SECTION 11 OF THE MICRO SMALL AND MEDIUM ENTERPRISES DEVELOPMENT (MSME) ACT, 2006. |
| EXHIBIT P5 | TRUE COPY OF THE GO(P) NO.546/2013/FIN.DATED 07.11.2013. |
| EXHIBIT P6 | TRUE COPY OF JUDGMENT DATED 30.06.2017 IN WA NO. 1358/2017 OF THIS HON'BLE COURT. |
| EXHIBIT P7 | TRUE COPY OF THE JUDGMENT DATED 4.4.2017 IN WP(C) NO. 22289/2016 OF THIS HONOURABLE COURT. |
| EXHIBIT P8 | TRUE COPY OF THE CLARIFICATION DATED 3.12.2017 ISSUED BY THE PRINCIPAL SECRETARY(FINANCE) |
| EXHIBIT P9 | TRUE COPY OF THE ORDER NO. PU- A2/109/2017/FIN. DATED 9.8.2018 ISSUED IN FAVOUR OF THE PETITIONER. |
| EXHIBIT P10 | TRUE COPY OF THE TENDER NOTICE INVITING TENDER NO. PWD/2020- |
| 2021/11861/AYRCSDN.VPM, DATED 13.01.2021. | |
| EXHIBIT P11 | TRUE COPY OF THE TENDER SUMMARY REPORTS DATED 15.02.2021. |
| EXHIBIT P12 | TRUE COPY OF THE BOQ SUMMARY DETAILS RELATED TO EXT.P10 TENDER. |
| EXHIBIT P13 | TRUE COPY OF THE COMMUNICATION DATED 15.02.2021 ISSUED BY THE 2ND RESPONDENT. |
| EXHIBIT P14 | TRUE COPY OF THE GO(P) NO.1/2021/FIN DATED TVPM, DATED 3.1.2021. |
| ANNEXURE R2(A) | TRUE COPY OF THE RELEVANT PAGE OF BID DOCUMENT |
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021
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APPENDIX OF WP(C) 4692/2021
| PETITIONER EXHIB | ITS |
|---|---|
| EXHIBIT P1 | TRUE COPY OF THE CERTIFICATE ISSUED BY THE NSIC -REF NO.NSIC/GP/COC/2015/42124 DATED 24/06/2020. |
| EXHIBIT P2 | TRUE COPY OF THE UDYAM REGISTRATION NUMBER UDYAM-KL-02-0001988. |
| EXHIBIT P3 | TRUE COPY OF THE COMMUNICATION BY LETTER NO.F.NO.25(2)2011-MA DT. 14/10/2011. |
| EXHIBIT P4 | TRUE COPY OF PUBLIC PROCUREMENT POLICY FOR MICRO AND SMALL ENTERPRISES ORDER, 2012 DATED 23/3/2012 CONFERRED BY SECTION 11 OF THE MICRO SMALL AND MEDIUM ENTERPRISES DEVELOPMENT (MSME) ACT, 2006. |
| EXHIBIT P5 | TRUE COPY OF THE G.O.(P) NO.546/2013/FIN. DATED 07/11/2013. |
| EXHIBIT P6 | TRUE COPY OF JUDGMENT DATED 30/6/2017 IN W.A.NO.1358/2017 OF THIS HON'BLE COURT. |
| EXHIBIT P7 | TRUE COPY OF THE JUDGMENT DATED 4/4/2017 IN WP(C) NO.22289/2016 OF THIS HONOURABLE COURT. |
| EXHIBIT P8 | TRUE COPY OF THE CLARIFICATION DATED 3/12/2017 ISSUED BY THE PRINCIPAL SECRETARY (FINANCE). |
| EXHIBIT P9 | TRUE COPY OF THE ORDER NO.PU- A2/109/2017/FIN. DATED 9/8/2018. |
| EXHIBIT P10 | TRUE COPY OF THE TENDER NOTICE INVITING TENDER NO.PWD/2020-2021/12175/ALP DATED 25/01/2021. |
| EXHIBIT P11 | TRUE COPY OF THE BID LIST DETAILS DATED 15/2/2021. |
| EXHIBIT P12 | TRUE COPY OF THE TENDER SUMMARY REPORT DATED 17/2/2021. |
| EXHIBIT P13 | TRUE COPY OF THE G.O.(P) NO.1/2021/FIN DATED TVPM. DATED 3/1/2021. |
| RESPONDENT'S EXH | IBITS |
| ANNEXURE R2(A) | TRUE COPY OF THE RELEVANT PAGE OF BID DOCUMENT |
WP(C) Nos.606, 4420 4353, 4363, 4692, 4420, 4701 & 7531 OF 2021
31
| APPENDIX OF WP(C) 7531/2021 | |
|---|---|
| PETITION | ER EXHIBITS |
| EXHIBIT | P1 TRUE COPY OF THE CERTIFICATE ISSUED BY THE NSIC-REF.NO.NSIC/GP/COC/2015/42124 DATED 24.06.2020. |
| EXHIBIT | P2 TRUE COPY OF THE UDYAM REGISTRATION NUMBER UDYAM-KL-02-0001988. |
| EXHIBIT | P3 TRUE COPY OF THE COMMUNICATION BY LETTER NO.F.NO.25(2)2011-MA DATED 14.10.2011. |
| EXHIBIT | P4 TRUE COPY OF PUBLIC PROCUREMENT POLICY FOR MICRO AND SMALL ENTERPRISES ORDER, 2012 DATED 23.03.2012 CONFERRED BY SECTION 11 OF THE MICRO SMALL AND MEDIUM ENTERPRISES DEVELOPMENT (MSME) ACT, 2006. |
| EXHIBIT | P5 TRUE COPY OF THE G.O.(P)NO.546/2013/FIN. DATED 07.11.2013. |
| EXHIBIT | P6 TRUE COPY OF JUDGMENT DATED 30.06.2017 IN W.A.NO.1358/2017 OF THE HON'BLE COURT. |
| EXHIBIT | P7 TRUE COPY OF THE JUDGMENT DATED 04.04.2017 IN W.P.(C)NO.22289/2016 OF THIS HONOURABLE COURT. |
| EXHIBIT | P8 TRUE COPY OF THE CLARIFICATION DATED 03.12.2017 ISSUED BY THE PRINCIPAL SECRETARY (FINANCE). |
| EXHIBIT | P9 TRUE COPY OF THE ORDER NO.PU- A2/109/2017/FIN. DATED 09.08.2018 ISSUED IN FAVOUR OF THE PETITIONER. |
| EXHIBIT | P10 TRUE COPY OF THE TENDER NOTICE INVITING TENDER NO.PWD/2020-2021/13139/EKM. DATED 17.02.2021. |
| EXHIBIT | P11 TRUE COPY OF THE TENDER SUMMARY REPORTS DATED 08.03.2021. |
| EXHIBIT | P12 TRUE COPY OF THE TENDER SUMMARY REPORT DATED 17.3.2021 RELATED TO EXT.P10 TENDER. |
| EXHIBIT | P13 TRUE COPY OF THE G.O.(P)NO.1/2021/FIN. DATED 03.01.2021. |
2 issues framed by the court
Whether the works covered by the tender notices are civil/electrical/infrastructure contracts, so that MSME units are excluded from the EMD, security deposit and performance guarantee exemptions.
Whether the rejection of the petitioners' tenders for non-payment of earnest money deposit, security deposit and performance guarantee was justified.
Colour shows how this judgement treated each authority
Kone Elevators India Pvt. Ltd. v. State of Tamil NaduRelied on¶11
Kone Elevators India Pvt. Ltd. v. State of Tamil Nadu [2014 (7) SCC 1] · Who else cites this
Larsen and Toubro Ltd. v. State of KarnatakaRelied on¶12
Larsen and Toubro Ltd. v. State of Karnataka [2014 (1) SCC 708] · Who else cites this
Commissioner of Central Excise and Customs, Kerala v. Larsen & Toubro Ltd.Referred¶13
Commissioner of Central Excise and Customs, Kerala v. Larsen & Toubro Ltd. [2016 (1) SCC 170] · Who else cites this
Municipal Corporation, Ujjain v. BVG India LimitedReferred¶15
Municipal Corporation, Ujjain and Another v. BVG India limited and Others [2018 (5) SCC 462] · Who else cites this
Silppi Constructions Contractors v. Union of IndiaReferred¶15
Silppi Constructions Contractors v. Union of India and Another [2019 KHC 6912]
Jagdish Mandal v. State of OrissaReferred¶15
Jagdish Mandal v. State of Orissa and others [2007 KHC 7883]
K.P.Anildev
Durolac
State of Kerala
The Executive Engineer, Kerala Public Works Department
The National Small Industries Corporation Ltd.
Jayaram V.R.
P.V.Kunhikrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
