IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 WA.No. 2429 of 2009 --------------------- AGAINST THE JUDGEMENT IN WPC.16627/2009 Dated 28/08/2009 .................... APPELLANT/PETITIONER: --------------------------- KOTTARAKKARA PUBLIC WORKS SKILLED WORKERS LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD., Q-459, KOTTARAKKARA, REPRESENTED BY THE SECRETARY, JAGADAMMA N. BY ADV. SRI.T.V.AJAYAKUMAR RESPONDENTS/RESPONDENTS: ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. EXECUTIVE ENGINEER, ROADS DIVISION, KOLLAM. 3. ASSISTANT EXECUTIVE ENGINEER, ROADS SUB DIVISION, KOTTARAKKARA. 4. M.K.SANTHOSH, MINI MANDIRAM, KARINGANNOOR P.O., OYOOR. 5. ROBIN P.ALEX, SHREYAS, THRIPPILAZHIKAM, KUNDARA. 6. MOHANAN NAIR, CHENGUVILA PUTHENVEEDU, ANAKOTTOOR P.O., KOTTARAKKARA. R1 TO R3 BY SENIOR GOVT. PLEADER, SRI. BENJAMIN PAUL. R5 BY ADV. SRI. K. ANAND THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R. Bannurmath, C.J. & A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 2429 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of October, 2009 JUDGMENT Basheer, J. Appellant claims that it is a registered Labour Contract Co-operative Society “consisting of skilled workers competent to undertake and execute various kinds of contract works”. Its area of operation is Kollam District. In response to Ext.P3 Tender Notification issued by Public Works Department, appellant and respondents 4 to 6 has submitted tenders in respect of certain items of work. But the works were awarded to respondents 4 to 6 since the rates quoted by them were much lower than that of the appellant. 2. Therefore the appellant Society filed the Writ Petition praying for the following reliefs: “i. to issue a writ of Certiorari or other appropriate writ, direction or order calling for the records leading to the awarding of the above works shown as SL.Nos.1,3,5,6,11 and 14 to the respondents 4 to 6 as well as the consequential actions/proceedings misleading the execution of agreement made taken pursuant thereto and to quash the WA No.2429 of 2009 -:2:- same; ii. to issue a writ of Mandamus or other appropriate writ, direction or order directing the 3rd respondent not to award the aforesaid works mentioned in Ext.P3 notification to the respondents 4 to 6 (if not already awarded); iii. issue a writ of Mandamus or other appropriate writ, direction or order directing the 3rd respondent to award the contract works mentioned as Sl.Nos.1, 3, 5, 6, 11 and 14 in Ext.P3 notification to the petitioner at the earliest and within a time stipulated by this Hon'ble Court.” 3. It was contended by the appellant that the tendered works in question ought to have been awarded to the appellant/Society in terms of Clause 8(b) of Ext.P1 order issued by the Government of Kerala in preference to respondents 4 to 6. 4. It is the admitted position that respondent Nos. 4 to 6 had quoted the lowest rates for the three works in question and awarder/tenderer had accordingly awarded those works to them. The said order was impugned by the appellant seeking shelter under the Clause referred to above contained in Ext.P1 order which reads thus: “(b) In case where a private contractor has quoted the lowest rate, the Labour Contract Co-operative Society which has WA No.2429 of 2009 -:3:- quoted for the work will be given preference in awarding contracts as follows: When the lowest tender is from a private contractor, the Labour Contract Co-operative Society will be awarded the work at 10% above the lowest tender, if the Society is willing to do the work. The work Awarding Authority should ascertain the willingness of the Labour Contract Society in writing.” 5. Though the appellant expressed its willingness to undertake the works at 10% above the lowest tender, the awarder(PWD) did not agree. 6. The learned Single Judge after considering the rival contentions of the parties held that the Public Works Department cannot be compelled to accept the higher tender offered by the appellant for the sole reason that it had come from a Labour Contract Society. Though the respondents brought it to the notice of the learned Judge that the Government had in the year 2004 brought in Ext.R1(a) order incorporating Clause 6 therein excluding the PWD from the purview of Ext.P1 order, it was contended by the appellant that the said Government Order had WA No.2429 of 2009 -:4:- been stayed by this Court in Exts.P5 and P6 orders. But the learned Judge observed that the order of stay was applicable only in those pending cases. 7. Learned counsel for the appellant takes exception to the above view taken by the learned Single Judge. It is contended by him that the operation of the said Government Order having been stayed by this Court in another case, the tenderer was bound to award the works to the appellant in terms of Ext.P1 order itself especially since the appellant had agreed to undertake those items of work at 10% above the minimum rate quoted by respondents 4 to 6. We are unable to accept the above contention, especially since admittedly the appellant had not challenged the subsequent order (Ext.R1(a)) issued by the Government. 8. We have already noticed the reliefs sought in the Writ Petition. Admittedly Exts.P5 and P6 interim orders were passed by this Court way back in the year 2004 in an original petition filed by another Society. Appellant has no case that Ext.R1(a) notification excluding PWD contracts from the purview of Ext.P1 WA No.2429 of 2009 -:5:- order, had been quashed by this Court. Further it has been brought to our notice that the three works in question have already been executed by the successful tenderers. In that view of the matter, the Writ Appeal has, in effect, become infructuous. Therefore, the Writ Appeal is dismissed. S.R. Bannurmath, Chief Justice. A.K. Basheer, Judge. ttb