Dismissed

M and T Constructions v. State of Kerala

Kerala HC11 Feb 2021WP(C)/976/2021

Case brief

AI extract

What is this about?

Two writ petitions were dismissed as the court found no material evidence to prove the contractor's license was originally issued incorrectly or that the application was made in the firm's name. The case was remanded for further inquiry.

What did the court decide?

The writ petitions were dismissed as no relief could be granted under Article 226 of the Constitution of India due to lack of evidence regarding the application for the license.

M and T Constructions Vs State of Kerala — Service and Employment | Kerala HC (2021)

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W.P.(C) No.28248 of 2020-E &

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W.P(C).No.976 of 2021-V 1

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942

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WP(C).No.28248 OF 2020(E)

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PETITIONERS:

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1 MANOJ KRISHNA AGED 54 YEARS MANAGING PARTNER, M AND T CONSTRUCTIONS, VALIYAKAVALA, VAIKOM P.O., KOTTAYAM DISTRICT.

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2 M & T CONSTRUCTIONS, VALIYAKAVALA, VAIKOM P.O., KOTTAYAM DISTRICT, REPRESENTED BY ITS MANAGING PARTNER, MANOJ KRISHNA.

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BY ADVS.

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SRI.BABU JOSEPH KURUVATHAZHA SMT.K.S.ARCHANA

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RESPONDENTS:

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

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2 CHIEF ENGINEER (ADMINISTRATION), PUBLIC WORKS DEPARTMENT, PUBLIC OFFICE BUILDING, MUSEUM, THIRUVANANTHAPURAM-695 033.

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3 SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT (ROADS & BRIDGES) SOUTH CIRCLE, PUBLIC OFFICE BUILDING, MUSEUM, THIRUVANANTHAPURAM-695033.

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4 SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT (BUILDINGS AND LOCAL WORKS) SOUTH CIRCLE, PUBLIC OFFICE BUILDING, MUSEUM, THIRUVANANTHAPURAM-695 033.

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R3 BY SR.GOVERNMENT PLEADER SRI.K.V.MANOJ KUMAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.01.2021, ALONG WITH WP(C).976/2021(V), THE COURT ON 11.02.2021 DELIVERED THE FOLLOWING:

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W.P.(C) No.28248 of 2020-E &

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W.P(C).No.976 of 2021-V 2

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942

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WP(C).No.976 OF 2021(V)

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PETITIONERS:

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1 M & T CONSTRUCTIONS VALIYAKAVALA, VAIKOM P.O. KOTTAYAM DISTRICT, REPRESENTED BY ITS MANAGING PARTNER, MANOJ KRISHNA.

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2 MANOJ KRISHNA, MANGING PARTNER, M & T CONSTRUCTIONS, VALIYAKAVALA, VAIKOM P.O. KOTTAYAM DISTRICT.

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BY ADVS.

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SRI.BABU JOSEPH KURUVATHAZHA SMT.K.S.ARCHANA

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF PUBLIC WORKS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.

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2 CHIEF ENGINEER (ADMINISTRATION), PUBLIC WORKS DEPARTMENT, PUBLIC OFFICE BUILDING, MUSEUM, THIRUVANANTHAPURAM 695 033.

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3 SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT (ROADS AND BRIDGES), SOUTH CIRCLE, PUBLIC OFFICE BUILDING, MUSEUM, THIRUVANANTHAPURAM 695033.

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4 SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT (BUILDING & LOCAL WORKS), SOUTH CIRCLE, PUBLIC OFFICE BUILDING, MUSEUM, THIRUVANANTHAPURAM 695 033.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.01.2021, ALONG WITH WP(C).28248/2020, THE COURT ON 11.02.2021 DELIVERED THE FOLLOWING:

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W.P.(C) No.28248 of 2020-E & W.P(C).No.976 of 2021-V 3

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P.V.ASHA, J.

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W.P.(C) No.28248 of 2020-E and W.P(C).No.976 of 2021-V -----------------------------------------

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Dated this the 11^th day of February, 2021.

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J U D G M E N T

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Both these Writ Petitions are filed by and between the very

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same parties in respect of the license issued as `A' class contractor.

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WP(C) No.28248 of 2020 is filed by Sri.Manoj Krishna in his capacity as the Managing Director, M&T Constructions and by M & T Constructions respectively as petitioners 1 and 2, seeking the following reliefs:

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“i. Issue a writ of certiorari or any other appropriate

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writ, order or direction, quashing Ext.P10 order of the 2^nd respondent;

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ii. Issue a writ of mandamus or any other appropriate

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writ, order or direction commanding the 4^th respondent to shift/change the Ext.P2 contractor's registration, which is valid up to 31.3.2023, in favour of the 2^nd petitioner, of which 1^st petitioner is the Managing Partner, forthwith;

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iii. Issue such other writ, order or direction which may deem fit in the facts and circumstances of the case.”

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By Ext.P10 order the Chief Engineer rejected the

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application of the petitioners for transferring the A class

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license from the name of Sri.Manoj Krishna, M/s.M&T

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W.P.(C) No.28248 of 2020-E &

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W.P(C).No.976 of 2021-V 4

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Constructions to that of M/s M&T Constructions, stating that a license cannot be transferred or assigned and that the firm has to register as a new contractor with PWD. According to the petitioners, M/s.P.Manoj Krishna and Sri.V.T.Thomas entered into a partnership as per Ext.P1 deed registered on 28.09.2002 constituting their firm 'M&T Constructions'. It is stated that the partners had decided that their future contract works would be carried out in the name of the firm 'M&T Constructions' and they had decided to apply for license in the name of the firm 'M&T Constructions' represented by its MD, P.Manoj Krishna. The contention of the petitioners is that based on an application submitted by Sri.Manoj Krishna for a contractor's license in the name of M&T Constructions, the 4^th respondent - Superintending Engineer Public Works Department (Buildings & Local Works), South Circle, Thiruvananthapuram issued the Contractor's Registration Card; but the said registration was with the photograph of Sri.Manoj Krishna in the name of Sri.Manoj Krishna having permanent address M&T Constructions, Vaikom, Kottayam with registration number as 35/BSC/2002-2003 with validity upto 2016. It is stated that the said license is being renewed from time to time. According to the petitioners, a series of works as listed in Ext.P2(a) were awarded to the firm and carried out by M&T Constructions. It is also stated that there are several ongoing works including those which are to be completed by 31.03.2021 and 31.05.2021. It is further stated that the income

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W.P.(C) No.28248 of 2020-E &

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W.P(C).No.976 of 2021-V 5

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tax returns are being filed in the name of M&T Constructions as can be seen from Ext.P3 series. Ext.P4 GST registration certificate is issued in the name of M&T Constructions with Sri.Manoj Krishna as Managing partner. Apart from that account is also opened in the name of M&T Constructions with State Bank of India, Vaikom Branch. It is stated that the partnership has completed works worth Rs.50.71 crore out of which the ongoing and new works are worth Rs.22.97 crore. While so, in the year 2019 the 3^rd respondent awarded the work namely NABAD RIBF -XXIV, for effecting improvements to the road from Hotel Baby Junction to H Irattukulangara – Pallipad Chantha, Kurikkad Junction in Pullampada road in Harippad Legislative Assembly Constituency, to the firm M&T Constructions. Pursuant to Ext.P6 selection notice dated 9.12.2019 the agreement dated 14.1.2020 was entered into by the firm with the 3 rd respondent furnishing performance guarantee for a sum of Rs.38,32,800/- and security deposit of Rs.19,16,400/-. However, at the time of registration of part bill the 3 rd respondent called for the registration certificate. But since the name in the registration card was that of Sri.Manoj Krishna- the 1 st petitioner, the 3 rd respondent insisted that bills can be registered in the name of M&T Constructions. The petitioners thereupon approached the 4^th respondent submitting Ext.P7 representation requesting for altering the Ext.P2 registration in favour of the 2^nd petitioner firm. Thereafter, the petitioners approached the 1^st and 2^nd respondents

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W.P.(C) No.28248 of 2020-E &

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W.P(C).No.976 of 2021-V 6

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submitting Ext.P8 representation and thereafter approached this Court in WP(C).No.17914/2020. This Court as per Ext.P9 judgment directed the 2^nd respondent to pass orders on the representation Exts.P7 and P8. Ext.P10 order was passed thereafter. The petitioners claim that they have been carrying on various works since the year 2002 in the name of partnership firm. Similarly, several ongoing works also given in the name of the firm. According to the petitioners, it is only on the basis of some complaints received from a rival contractor that the respondents have initiated action and insisted production of certificate in the name of the firm.

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The very same petitioners have filed Writ Petition No.976/2021 with M & T Constructions as the 1^st petitioner and Manoj Krishna as the 2^nd petitioner seeking the following reliefs:

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“i. Issue a writ of certiorari or any other appropriate writ, order or direction, quashing Ext.P7 direction of the 3^rd respondent;

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ii. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3^rd respondent to consider and dispose of Ext.P8 representation, forthwith;

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iii. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3^rd respondent to permit the 1^st petitioner to execute the closure agreement, to close the agreement dated 14.1.2020, executed in pursuance to Ext.P6 selection notice, on account of the deliberate action on the part of the 3^rd respondent and his subordinate officials, in not

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W.P(C).No.976 of 2021-V 7

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W.P.(C) No.28248 of 2020-E &

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permitting the 1^st petitioner to complete the said work;

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iv. Issue such other writ, order or direction which may

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deem fit in the facts and circumstances of the case.”

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As per the letter produced as Ext.P7, the Superintending Engineer directed the M & T Constructions to execute closure agreement so as to enable them to proceed with retender. In this Writ Petition, the petitioners have reiterated the contentions in W.P(C).No.28248/2020 and alleged that t he mistake occurred in the office of the 4 th respondent by issuing the contractor's license in the address of the Manoj Krishna instead of issuing the contractor's license in the name of the firm, though the application was for issuing license in the name of the firm. At the same time, the petitioners have stated that a copy of the application submitted for registration is not available with them. Petitioners alleged that in Ext.P7 letter, it is stated that on clarification being sought, the 4^th respondent had informed that the registration was given to M & T Constructions, Manoj Krishna, Valiyakavala and the same is in individual capacity. Producing the postal receipt Ext.P7(a) addressed to the M & T Constructions, Manoj Krishna, the petitioners claim that it is only because of the mistake committed by the 4^th respondent that license is issued in this manner. Regarding the direction to the firm to execute closure agreement, it is stated that the petitioners were ready to execute the agreement because of the delay caused and because of the unsustainable reason stated by the 3^rd respondent in

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W.P.(C) No.28248 of 2020-E & W.P(C).No.976 of 2021-V 8

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registration of the bill.

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5. Heard Sri. Babu Joseph Kuruvathazha and Sri. P.K.Manojkumar, the learned Senior Government Pleader. The learned Government Pleader submitted that orders are already issued terminating the contract with the petitioners.

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6. As the main dispute is on the name shown in the license/registration certificate, this Court had directed the learned Senior Government Pleader to make available the files. In the files made available thereafter, proceedings for the period subsequent to 2010, only are available. It is stated that the previous records are not available. On a perusal of the available files, it is seen that on one register, on which it is written as “Vol-III of A class” in page 72, the Name and address of “Sri. Manoj Krishna, M&T Constructions, Vaikaom, Kottayam entered are seen. The license is renewed upto 31.03.2014 and by another endorsement license is renewed upto 31.03.2017, with signature dated 23.01.2014. In page 73, which occurs against page 72, the photograph of Manoj Krishna and details regarding security deposits entered on 23.01.2014, are seen. In another register relating to issuance of licences itself apparently for the subsequent period, the photograph of Manoj Krishna with the seal of Superintending Engineer against name and address “Manoj Krishna, M&T Constructions, Vaikaom, 66141, Kottayam” with license No.35/BFC/2002-03 occurs in page 67 with endorsement as to extension of validity from 01.04.2017 to 31.03.2020 with

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W.P.(C) No.28248 of 2020-E &

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W.P(C).No.976 of 2021-V 9

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signature dated 29.06.2017 and another extension from 01.04.2020 to 31.03.2023 entered on 27.04.2020 are seen.

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7. From the registers which are made available it is seen that extension is being granted in the name of Manoj Krishna in the address of the firm and with his photograph. The claim in the representation as well as in the first writ petition was also for transferring the license in the name of Manoj Krishna to M&T Constructions.

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8. Though the petitioners have stated that most of the works undertaken by them have been in the name of the firm, the respondents have denied the same. There is no material before this Court to show that works mentioned by the petitioners were given in the name of the firm. When there is factual dispute, it is not proper for this Court to adjudicate an issue which requires evidence. Similarly, there is no material to show either that license was applied for in the name of the firm or that it was the mistake occurred at the office of the licensing authority that the license happened to be issued in the name of

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Manoj Krishna. The application of the petitioners for transferring the license in the name of Manoj Krishna to

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that of the firm submitted in the year 2020 is also available in the correspondence file. Materials before this Court would only show that license issued in the name of Manoj Krishna in the address of the firm and with the photograph of Manoj Krishna affixed in it is being renewed. No provision is also pointed out

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W.P.(C) No.28248 of 2020-E & W.P(C).No.976 of 2021-V 10

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to show that a license in the name of a firm can be issued affixing the photograph of its Managing Partner or an individual.

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9. In the above circumstances, no relief can be granted to the petitioners in either of these Writ Petitions, under Article 226 of the Constitution of India.

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Both these Writ Petitions are accordingly dismissed.

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rkc/rtr

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W.P.(C) No.28248 of 2020-E &

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W.P(C).No.976 of 2021-V 11

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APPENDIX OF WP(C) 28248/2020

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PETITIONERS' EXHIBITS:

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EXHIBIT P1	TRUE PHOTOCOPY OF THE PARTNERSHIP DEED DATED 28/09/2002 REGISTERED BETWEEN MR. P. MANOJ KRISHNAN AND MR. V.T.THOMAS.
EXHIBIT P2	TRUE PHOTOCOPY OF THE CONTRACTOR'S REGISTRATION CARD, BEARING NO. 35/BSC/2002-03 ISSUED BY THE 4TH RESPONDENT IN FAVOUR OF THE 1ST PETITIONER.
EXHIBIT P2(a)	TRUE COPY OF THE DETAILS OF CERTAIN COMPLETED WORKS WORTH RS.50.71 CRORE AND THE ONGOING AND NEW WORKS WORTH RS. 22.97 CRORE UNDERTAKEN BY THE 2ND PETITIONER.
EXHIBIT P3	TRUE PHOTOCOPY OF THE INCOME TAX RETURN ACKNOWLEDGEMENT FOR THE YEAR 2015-16 IN THE NAME OF THE 2ND PETITIONER.
EXHIBIT P3(a)	TRUE PHOTOCOPY OF THE INCOME TAX RETURN ACKNOWLEDGEMENT FOR THE YEAR 2016-17, IN THE NAME OF THE 2ND PETITIONER.
EXHIBIT P3(b)	TRUE PHOTOCOPY OF THE INCOME TAX RETURN ACKNOWLEDGEMENT FOR THE YEAR 2017-18, IN THE NAME OF THE 2ND PETITIONER.
EXHIBIT P3(c)	TRUE PHOTOCOPY OF THE INCOME TAX RETURN ACKNOWLEDGEMENT FOR THE YEAR 2018-19, IN THE NAME OF THE 2ND PETITIONER.
EXHIBIT P3(d)	TRUE PHOTOCOPY OF THE INCOME TAX RETURN ACKNOWLEDGEMENT FOR THE YEAR 2019-20, IN THE NAME OF THE 2ND PETITIONER.
EXHIBIT P4	TRUE COPY OF THE GST REGISTRATION ALLOTTED TO THE 2ND PETITIONER.
EXHIBIT P5	TRUE PHOTOCOPY OF THE STATEMENT OF ACCOUNTS OF THE 2ND PETITIONER MAINTAINED WITH THE STATE OF BANK OF INDIA BEARING ACCOUNT NO.67123377878.

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W.P.(C) No.28248 of 2020-E & W.P(C).No.976 of 2021-V 12

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EXHIBIT P6	TRUE COPY OF THE 2018/11930 DATED 3RD RESPONDENT.	SELECTION NOTICE NO. DB9- 09/12/2019 ISSUED BY THE
EXHIBIT P7	TRUE COPY OF THE 19/05/2020 SUBMI BEFORE THE 4TH R	REPRESENTATION DATED TTED BY THE PETITIONERS ESPONDENT.
EXHIBIT P8	TRUE COPY OF THE 09/06/2020 SUBMI BEFORE THE 1ST A	REPRESENTATION DATED TTED BY THE PETITIONERS ND 2ND RESPONDENTS.
EXHIBIT P9	TRUE COPY OF THE COURT DATED 26/0 NO.17914/2020.	JUDGMENT OF THIS HON'BLE 8/2020 IN WPC
EXHIBIT P10	TRUE COPY OF THE CE/ADMN./PLA/213 ISSUED BY THE 2N	ORDER NO. 9/2020 DATED 03/11/2020 D RESPONDENT.
EXHIBIT P11	TRUE COPY OF THE 1905 OF THE REVI	RELEVANT PAGES OF CLAUSE SED PWD MANUAL, 2012.
EXHIBIT P12	TRUE COPY OF THE 2018/11930 DATED RESPONDENT.	PROCEEDING NO.DB9- 17.12.2020 OF THE 3RD
RESPONDENTS' EXHIBITS
ANNEXJURE R3(a)	TRUE COPY OF THE NOTICE INVIING T	RELEVANT PAGE OF THE ENDER.
ANNEXURE R3(b)	TRUE COPY OF THE	BID SUMMARY.
ANNEXURE R3(c)	TRUE COPY OF ORD (ADDL)/R08/19 DA	ER NO.CE(R)NB/24/ TED 09.12.2020.

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W.P.(C) No.28248 of 2020-E & W.P(C).No.976 of 2021-V 13

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APPENDIX OF WP(C) 976/2021

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PETITIONERS' EXHIBITS:

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EXHIBIT P1	TRUE PHOTOCOPY OF THE PARTNERSHIP DEED DATED 28.9.2002. REGISTERED BETWEEN R.P. MANOJ KRISHNAN AND MR. V.T. THOMAS.
EXHIBIT P2	TRUE PHOTOCOPY OF THE CONTRACTOR'S REGISTRATION CARD, BEARING NO. 35/BSC/2002- 03 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P2 (a)	TRUE COPY OF THE DETAILS OF CERTAIN COMPLETED WORKS WORTH RS.50.71 CRORE AND THE ONGOING AND NEW WORKS WORTH RS. 22.97 CRORE UNDERTAKEN BY THE 1ST PETITIONER.
EXHIBIT P3	TRUE PHOTOCOPY OF THE INCOME TAX RETURN ACKNOWLEDGEMENT FOR THE YEAR 2015-16 IN THE NAME OF THE 2ND PETITIONER.
EXHIBIT P3 (a)	TRUE PHOTOCOPY OF THE INCOME TAX RETURN ACKNOWLEDGEMENT FOR THE YEAR 2019-20 IN THE NAME OF THE 2ND PETITIONER.
EXHIBIT P4	TRUE COPY OF THE GST REGISTRATION ALLOTTED TO THE 1ST PETITIONER.
EXHIBIT P5	TRUE PHOTOCOPY OF THE STATEMENT OF ACCOUNTS OF THE 1ST PETITIONER MAINTAINED WITH THE STATE BANK OF INDIA BEARING ACCOUNT NO 67123377878.
EXHIBIT P6	TRUE COPY OF THE SELECTION NOTICE NO. DB9- 2018/11930, DATED 9.12.2019 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P7	TRUE COPY OF THE LETTER NO. DB9-2018/11930 DATED 17.12.2020 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P7 (a)	TRUE PHOTOCOPY OF THE POSTAL ENVELOP SENT IN THE NAME OF THE 1ST PETITIONER, IN WHICH EXT.P7 WAS ENCLOSED.
EXHIBIT P8	TRUE COPY OF THE REPRESENTATION DATED 28.12.2020 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT.

M and T Constructions v. State of Kerala

Case brief

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What did the court decide?

M and T Constructions v. State of Kerala

Case brief

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