Kasaragod Hollow Bricks Nirmana Thozhilali Vyavasaya Sahakara Sanghom Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 3RD DAY OF JUNE 2014/13TH JYAISHTA, 1936** ## **WA.No. 639 of 2014 () IN WP(C).25928/2013** **------------------------------------------AGAINST THE JUDGMENT IN WP(C) 25928/2013 of HIGH COURT OF KERALA DATED 28-03-2014** ## **APPELLANT/6TH RESPONDENT:** ## **-------------------** **THE KASARAGOD HOLLOW BRICKS NIRMANA THOZHILALI VYAVASAYA SAHAKARANA SANGHOM LTD. NO IND(S) 60, NEAR CITY TOWER, M.G ROAD, KASARAGOD 671321 REPRESENTED BY ITS SECRETARY MS. INDIRA. K** **BY ADV. SRI.SHAJI P.CHALY** ## **RESPONDENTS/PETITIONER, RESPONDENT 1-5:** **-----------------------** ## **1. THE KUMBALA LABOUR CONTRACT CO-OPERATIVE** - **SOCIETY LTD NO S444, KUMBALA P.O, KASARAGOD DISTRICT REPRESENTED BY ITS AUTHORIZED DIRECTOR MR. P. MOHAMMED KUNHI** **2. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY FISHERIES AND PORT DEPARTMENTS GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001** ## **3. THE DIRECTOR OF PORTS,** - **OFFICE OF THE DIRECTOR OF PORTS, VALIYATHURA VALLAKKADAVU P.O, THIRUVANANTHAPURAM 695008** **4. THE PORT CONSERVATOR, PORT OFFICE, KASARAGOD P.O, KASARAGOD DISTRICT- 671121** **5. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES KASARAGOD P.O, KASARAGOD 671121.** **W.A.NO.639/2014** **2** ## **6. THE REGISTRAR OF INDUSTRIAL CO-OPERATIVE SOCIETIES DISTRICT INDUSTRIES CENTRE, KASARAGOD P.O KASARAGOD 671321** **BY SR. GOVERNMENT PLEADER, SRI. MANOJ P.KURIYACHAN R1 BY SRI.JOBI JOSE KONDODY** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ANTONY DOMINIC & ALEXANDER THOMAS, JJ. --------------------------------W.A. No.639 OF 2014** ## **--------------------------------Dated this the 3[rd] day of June, 2014** ## **J U D G M E N T ~~~~~~~~~~~** ## **Antony Dominic, J.** Dispute between the appellant and the 1[st] respondent Society with respect to the awarding of tender for manual dredging of sand at K5, Shiriya Valayam in Kasaragod Port, is the issue raised in the Writ Petition and this appeal. Bereft of the details, facts of the case are that by Ext.P10, the Government of Kerala issued norms for dredging in the port limits in the State and as far as the Co-operative Societies are concerned, one of the norms was that one of the main objectives of the Society should be manual dredging by which the members of the Co-operative Society earned their main livelihood. In pursuance to Ext.P10, for the years 2013-14, tenders were invited by Ext.P11 tender notice. Accordingly, tenders were submitted by the appellant and the 1[st] respondent. The tenders were evaluated by a committee constituted for that W.A.No.639/2014 2 purpose applying the parameters fixed by them. On completion of the evaluation, appellant Society was awarded 34 marks and the 1[st] respondent was awarded 32 marks. Tender was awarded to the appellant and this came to be questioned by the 1[st] respondent in the Writ Petition filed by them. The Writ Petition was allowed by the learned Single Judge by holding that the appellant did not satisfy the tender condition which required that one of its main objective shall be manual dredging and on that basis, the learned Judge ordered that the tender be awarded to the 1[st] respondent. It is this judgment, which is under challenge before us. 2. We heard the learned counsel for the appellant, learned counsel for the 1[st] respondent and the learned Government Pleader appearing for respondents 2 to 6. The learned counsel for the appellant attacked the judgment of the learned Single Judge contending that the defect pointed out by the learned Single Judge in the object clause stood W.A.No.639/2014 3 rectified by Ext.R6(a), an order passed by the Registrar of Co-operative Societies, exercising his powers under Rule 180 of the Kerala Co-operative Rules. In this context, he also placed reliance on judgment of this Court in **Janardhanan v. Joint Registrar** [1990 (1) KLT 530]. Therefore, according to him, the basis on which the learned Single Judge has proceeded is incorrect. The learned counsel also contended that, even if it is held that the appellant is ineligible for any reason, the learned Single Judge should not have directed that the tender be awarded to the 1[st] respondent and instead should have left the matter to be decided by the awarder themselves. The learned counsel appearing for the 1[st] respondent made elaborate submissions contradicting these contentions and we have considered the submissions made at the Bar. 3. Bye-laws of the appellant Society are contained in Ext.P6. Before the learned Single Judge the appellant did not have a case that its bye-laws authorised it to pursue W.A.No.639/2014 4 manual dredging as one of its objective. In fact, it is on that premise, they moved the Registrar of Co-operative Societies under Rule 180 of Co-operative Rules and obtained Ext.R6 (a) sanction order. Admittedly, in Ext.P10 Government Order, one of the norms prescribed, in so far as the Cooperative Societies are concerned, was that one of the main objectives shall be manual dredging. Therefore, admittedly, the bye-laws did not contain manual dredging as the objects of the Society. 4. The remaining question is whether that defect stood rectify by Ext.R6(a). In our view, even if R6(a) is accepted as one enabling the Society to submit its tender in response to Exts.P10 and P11, that could not have, in any manner, had a binding effect on the awarder of the tender and the awarder is bound by the norms set by itself and could not have departed from the conditions of Exts.P10 and P11. If that be so, in spite of Ext.R6(a), the noncompliance of the tender conditions was still surviving. W.A.No.639/2014 5 Therefore, the learned Single Judge was perfectly justified in his conclusion that the appellant Society did not satisfy the conditions contained in Exts.P10 and P11 to be awarded the tender in its favour. 5. The further question to be considered is whether once the appellant is found to be ineligible, the learned Single Judge was justified in directing that the tender be finalised in favour of the 1[st] respondent. In this context, we should make reference to another condition of Ext.P10 Government Order which prescribe that at least 90% of the members of the Society should be involved in the activity of manual dredging in the port limits and the averments in the affidavit filed by the 3[rd] respondent that the 1[st] respondent Society is failed to prove that more than 90% of its members are fully engaged in manual dredging within the port limit. In such a situation, once the learned Single Judge found the award of tender in favour of the appellant illegal, the proper course that the learned Single Judge W.A.No.639/2014 6 should have adopted was to direct the official respondents to have assess the eligibility of the 1[st] respondent and to take a decision on that basis applying the norms set by the Government and by themselves in Exts.P10 and P11. 6. Though the controversy between the parties stand resolved by the above findings, we hasten to add that the effect of the conditions in Ext.P10 will be that in an area there will be one Society which will be eligible to quote in response to the tender notice and as a result, it will lead only creation of monopoly, excluding healthy competition among Societies. Such a situation is undesirable and, therefore, it is for the respondents themselves to reflect as to whether the conditions in Ext.P10 should be retained as such or should be suitably modified so that a healthy competition is encouraged which will be ultimately to their own advantage itself. 7. It is also clarified that in the event it is found that the 1[st] respondent is ineligible, it will be open to the official W.A.No.639/2014 7 respondents to make such suitable arrangements either by making fresh tenders or otherwise for the remaining part of year. 8. With these directions and setting aside the judgment to the extent it directs that the tender should be awarded in favour of the 1[st] respondent for the year 2013 and 2014 and also directing the respondents to assess the eligibility of the 1[st] respondent as directed above, and pass further orders in the matter, the appeal is disposed of. It has undertaken by the official respondents that the process of assessment of the eligibility of the 1[st] respondent will be completed, at any rate, within a period of three weeks from the date of receipt of a copy of this judgment. Sd/- ## **ANTONY DOMINIC, JUDGE** **sd/ALEXANDER THOMAS, JUDGE.** ps/4/6/2014 //True copy// PA to Judge