IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 1059 of 2009 Date of Decision : 29.1.2009. The Sunam Progressive Co-operative Labour & Construction Society Limited & others. ....Petitioners Versus State of Punjab & others. ....Respondents CORAM: Hon'ble Mr. Justice J.S. Khehar Hon'ble Mr. Justice Nawab Singh Present : Mr. Dharam Vir Sharma, Sr. Advocate with Ms. Shivani Sharma, Advocate, for the petitioners. Mr. Suvir Sehgal, Addl. AG Punjab, for the respondents. J.S. Khehar. J. The petitioners are Co-operative Labour and Construction Societies, which have been registered as such, under the provisions of the Punjab Co-operative Societies Act, 1961. In order to grant concessions for award of contracts to Co-operative Labour and Construction Societies (like the petitioners-Societies), the State Government has been issuing notifications from time to time. Two such notifications dated 10.9.1999 and 22.12.2004 have been appended to the present writ petition as Annexures P-1 and P-2. A notice inviting tenders was issued by the State Government on 19.12.2008, since thereafter, a corrigendum dated 2.1.2009 was issued clarifying condition No.1H of the aforestated tender notice. The petitioners were desirous of competing for some of the works for which the tenders were sought. Despite the desire of the petitioners, they were not CWP No. 1059 of 2009 (2) even issued tender forms, accordingly, the petitioners could not submit their tenders so as to compete for the contracts emanating out of the tender notice dated 19.12.2008. In fact, the grievance raised by the petitioners through the instant writ petition is limited to the denial of tender forms to the petitioners-Societies. In sum and substance, the claim of the petitioners is that they should be given tender forms, and that, they should be afforded to an opportunity to submit the same, and thereupon, their claims should be considered for the award of contracts, along with the other applicants, in accordance with law. Since the award of tenders was a subject matter of consideration on the very first date of hearing i.e. on 22.1.2009, while issuing notice of motion, service was sought to be effected on the respondents through the Additional Advocate General, Punjab. The Additional Advocate General, Punjab on the first date of hearing came to be instructed by Sh. H.S. Sandhu, Executive Engineer, Lehal Division, Irrigation Branch, Patiala. On the basis of the submissions made by the learned counsel for the respondents, this Court felt that the matter could only be effectively adjudicated upon, after the receipt of a written response on behalf of respondent Nos. 1 to 3. Accordingly, a week's time was afforded to the respondents to file their written-statement. In furtherance of the liberty granted by this Court, a joint written-statement on behalf of all the respondents was filed in this Court controverting the pleas raised on behalf of the petitioners-Societies. During the course of hearing, learned counsel for the respondents placed reliance on the notice inviting tenders dated 19.12.2008 CWP No. 1059 of 2009 (3) (Annexure P-4). He invited the Court's attention to the terms and conditions of the aforesaid notice and specifically paragraph 1H thereof. Paragraph 1H relied upon by the learned counsel for the respondents is being extracted hereunder:- “Financial Position : Along with the application form for obtaining the tender form, an F.D.R./D.A.C for a minimum amount of Rs.5.00 lakh in the shape of Working capacity issued by any bank in favour of Executive Engineer, Lehal Division, I.B., Patiala should be enclosed by the Contractor Agency/Society.” It is the vehement contention of the learned counsel for the respondents that all those desirous of seeking tender forms were required to deposit a minimum amount of Rs.5 lacs by way of F.D.R./D.A.C in the shape of working capacity failing which tender forms could not have been issued. It is also the vehement contention of the learned counsel for the respondents that petitioners-Societies having not deposited the required amount in the shape of working capacity were not entitled to the issuance of tender forms. In the background of any submissions advanced by the learned counsel for the petitioners, we have examined the submission advanced by the learned counsel for the respondents. Since it is not a matter of dispute that the claim of the petitioners-Societies arises out of the notice inviting tenders dated 19.12.2008, we are of the view that all those who are desirous of competing for the contracts offered by the notice inviting tenders were required to deposit a specific amount of money, in the shape of working capacity, and only thereupon, could have been issued tender forms. Since the aforesaid pre-requisite condition for obtaining tender forms had CWP No. 1059 of 2009 (4) not been fulfilled by the petitioners-Societies, the petitioners were ineligible for issuance of tender forms. Inspite of the conclusion drawn by us hereinabove, the first contention of the learned counsel for the respondents is based on the corrigendum dated 2.1.2009. Relevant part of the corrigendum is being extracted hereunder:- “Condition No.1H Financial Position : In the case of Co-operative L. & C. Society, notification No. 76/52/79/C II(V)/19337 dated 22.12.2004 issued by Cooperation Department of Punjab Government will be applicable.” Based on the aforesaid corrigendum, it is the submission of the learned counsel for the petitioners that condition No. 1H relied upon by the learned counsel for the respondents to defeat the claim of the petitioners stood modified in terms of the notification dated 22.12.2004 (Annexure P-2). In so far as the aforesaid notification is concerned, learned counsel for the petitioners has placed reliance on paragraph 1 thereof which is being extracted hereunder:- “All unskilled works up to any value and skilled works up to the limit of Rs.15,00,000/- for each work should be allotted to these societies only by way of tenders within common schedule of rates fixed by Public Works Department, Punjab. In case these societies fail to tender or do not accept the work within the ceiling rates so fixed, the work may be executed by inviting upon tenders from both the contractors and the societies.” CWP No. 1059 of 2009 (5) Based on paragraph 1 of the notification dated 22.12.2004, it is the contention of the learned counsel for the petitioners that the notification under reference exempted Co-operative Labour and Construction Societies in the State from making any pre-deposits whatsoever, for un-skilled works, and the aforesaid exemption was without reference to the value of the works concerned. For the instant proposition, learned counsel for the petitioners invited our attention to the following words incorporated in paragraph 1 of the notification dated 22.12.2004 ...“All un-skilled works up to any value...”. We have considered the aforesaid submission of the learned counsel for the petitioners. We however, find no merit therein. A closer perusal of the notification dated 22.12.2004 reveals that the State Government made express references to all the benefits which it desired to extend to Co-operative Labour and Construction Societies. In this behalf, reference may be made to paragraphs 4 and 7. Paragraphs 4 and 7 are being extracted hereunder:- “4. There will be no earnest money for the skilled works up to Rs.5.00 lacs. The societies will deposit earnest money at the rate 25% of the rate prescribed for other P.W.D contractors for all skilled works up to Rs. 10,00,000/- and at the rate of 50% of the prescribed earnest money for other PWD contractor for all skilled works above Rs.10,00,000/- without any Bank Guarantee and Security Deposits. 5 and 6 xxx 7. The Labour & Construction Societies be exempted CWP No. 1059 of 2009 (6) from any licensing fee.” Since the deposits for un-skilled works have not been exempted expressly by the notification dated 22.12.2004, it is not possible for us to read in the said notification such an exemption. In view of the above, we find no merit in the first contention advanced by the learned counsel for the petitioners. The second contention advanced by the learned counsel for the petitioners is based on paragraph 4 of the notification dated 22.12.2004 (already extracted hereinabove). Based on the aforesaid, it is the contention of the learned counsel for the petitioners that there was a relaxation for deposit of earnest money, and that, since no earnest money was payable by the petitioners-Societies for Co-operative Labour and Construction Societies, it was wrongful for the respondents to decline the petitioners the right to compete for the contracts thrown open by the notice inviting tenders dated 19.12.2008. We have considered the second submission advanced by the learned counsel for the petitioners. The deposit sought under paragraph 1H of the notice inviting tenders dated 19.12.2008 does not refer to earnest money. Paragraph 1H is a deposit required to be made by an applicant at the time of submission of an application requesting for the issuance of tender forms. The deposit envisaged under paragraph 1H of the notice inviting tenders dated 19.12.2008, and the deposit envisaged in paragraph 4 of the notification dated 22.12.2004, are separate and distinct deposits. They have been unnecessarily described as one and the same by the learned counsel for the petitioners. Even otherwise, the claim of the petitioners based on paragraph 4 of the notification dated 22.12.2004 is mis- conceived in the facts and circumstances of this case on account of the fact CWP No. 1059 of 2009 (7) that paragraph 4 relates to skilled works, whereas, the instant submission advanced by the learned counsel for the petitioners is to demonstrate the claim of the petitioners for unskilled works. Accordingly, we find no merit in the second contention advanced by the learned counsel for the petitioners. No other submission besides those noticed hereinabove was advanced on behalf of the petitioners. For the reasons recorded hereinabove, we find no merit in the instant petition and the same is accordingly dismissed. (J.S. Khehar) Judge (Nawab Singh) Judge 29.1.2009. SN