CWP No. 8326 of 2010 1 In the High Court of Punjab and Haryana, Chandigarh. CWP No. 8326 of 2010 (O&M) Date of Decision: 27.05.2010 The Haripura Co-op. L&C Society and others ....Petitioners Versus State of Punjab and others ....Respondents. Coram:- Hon'ble Mr. Justice Adarsh Kumar Goel Hon'ble Mr. Justice Alok Singh 1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. P.S. Sekhon, Advocate for the petitioners. Ms. Rita Kohli, Addl. A.G., Punjab for the respondents. ... Alok Singh, J. 1. By way of present writ petition, petitioners – Societies are assailing conditions No.2 and 5 of instructions dated 4.5.2010 (Annexure P-3). Writ of mandamus is also sought to command the respondents to consider the tender submitted by the petitioners ignoring the impugned conditions No.2 and 5 of instructions dated 4.5.2010. 2. Brief facts of the present case are that petitioners are Cooperative Labour and Construction Societies registered under the Punjab Cooperative Societies Act, 1961; petitioners – Societies were doing the work of construction and other work allotted by the respondent – CWP No. 8326 of 2010 2 department and by the other departments of the State of Punjab; petitioners – Societies are having capacity certificates issued by the Assistant Registrar, Cooperative Societies, Sangrur; respondent – department issued E-tendering notice No.1 dated 16.4.2010 inviting tenders for the work of rehabilitation of Kotla Branch by constructing side lining package from Package RD No.292000-338000; respondent – department also issued tender notice No.1 dated 16.4.2010 for rehabilitation of Kotla Branch by constructing side lining Package from RD No.338000–386000; as per tender notice, sale of documents was to start on 1.5.2010 and the pre-bid meeting was fixed for 5.5.2010 and the submission of bid was on 6.5.2010 and the technical bid was to be opened on 7.5.2010 and the financial bid was to be opened on 10.5.2010; respondent – department issued eligibility for participation for pre-qualification; petitioners – Societies are eligible and are having pre-qualification conditions issued by the respondent – department; petitioners – Societies purchased tender documents through online and fulfil all the terms and conditions, they attached draft of amount prescribed by the department and also attached earnest money for the work for which petitioners – Societies had applied; petitioners – Societies also attached Fixed Deposit Receipts (FDRs) amounting to Rs.5 lacs each as per the conditions issued by the respondent – department and also attached all other requisite documents; on 4.5.2010, all of a sudden, respondent – department issued instructions, which read as under:- “1. Affidavits should be of Rs.25/- each and agreement will be on the stamp papers of Rs.2000/-. 2. L & C Societies are advised to participate in the Tender of their Home District. CWP No. 8326 of 2010 3 3. Click on Tender Free View for New Tender in Punjab Irrigation Department. 4. Click on Vendor help for the tendering procedure steps in PID. 5. L & C Societies are advised to participate in the Tenders of their Home District. 6. For any assistance regarding tendering place, contract Mr. Arun at 7696126574 Mr. Mahesh at 7696126573, Mr. Sarabjit Singh Mand 9417375541 or 011-22468721.” 3. As per conditions No.2 and 5 of instructions dated 4.5.2010, it is provided that L & C Societies are advised to participate in the tenders of their Home District. Feeling aggrieved by the aforesaid conditions, petitioners – societies have invoked the jurisdiction of this Court under Article 226 of the Constitution of India. 4. We have heard learned counsel for the parties and perused the record. 5. Learned counsel for the petitioners vehemently argued that as per the tender notice, sale of documents was to be started on 1.5.2010; pre- bid meeting was fixed for 5.5.2010; submission of bid was on 6.5.2010; the technical bid was to open on 7.5.2010 and the financial bid was to be opened on 10.5.2010, but after the advertisement inviting tenders, respondent – department illegally issued instructions dated 4.5.2010 with ulterior motive to deprive petitioners – societies in getting the work. Second argument advanced by learned counsel for the petitioners is that conditions No.2 and 5 of the instructions dated 4.5.2010 (Annexure P-3) are in violation of Article 19 of the Constitution of India. Learned counsel for CWP No. 8326 of 2010 4 the petitioners further argued that there is no rationality in imposing conditions No.2 and 5 and that in the past also, petitioners – societies were participating in various works of various departments of the State of Punjab. 6. Ms. Rita Kohli, appearing for the respondents argued that every Cooperative Society has its own bye-lays and as per the bye-laws, area of the operation of the Society is defined and as per the regulation, Societies can participate in any work within the district. It is further argued by learned counsel for the respondents that for the welfare of the Societies, conditions No.2 and 5 were imposed. 7. Undisputedly, sale of tender documents started on 1.5.2010 and pre-bid meeting was fixed for 5.5.2010. Issuance of the impugned instructions on 4.5.2010 does not seem to be justified and bonafide. No reasoning to issue instructions dated 4.5.2010 is clarified before us despite of asking repeatedly. Article 19 of the Constitution of India reads as under:- 19. (1) All citizens shall have the right— (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; and (g) to practise any profession, or to carry on any occupation, trade or business. (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making CWP No. 8326 of 2010 5 any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. (3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. (6) Nothing in sub-clause (g) of the said clause shall affect the CWP No. 8326 of 2010 6 operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,— (i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.” 8. From the perusal of Article 19 of the Constitution of India, we are satisfied that reasonable restrictions can be imposed by the State by making law relating to professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business. Monopoly can also be created by the State in favour of the State or Corporations owned or controlled by the State for any trade, business, industry or service to the exclusion, complete or partial of others. 9. We do not find anything from the impugned instructions dated 4.5.2010 that the State is creating any monopoly in favour of the State pertaining to the work shown in the tender in question, nor we find that any qualification or eligibility is fixed under the impugned instructions. We are of the opinion that impugned instruction dated 4.5.2010 is not a law. Basis CWP No. 8326 of 2010 7 of the instruction has not been disclosed. At the first sight, instruction seems to be unjustified and arbitrary. We are of the opinion that pursuant to instructions dated 4.5.2010, petitioners – societies cannot be debarred from participating in tender process throughout the State, if they fulfil other eligibility and qualifications prescribed for the tender. 10. As per learned counsel for the petitioners, petitioners have all eligibility criteria and have financial position to participate in the tender and to complete the work, if allotted to them. All these are questions of fact, which cannot be gone into by us under Article 226 of the Constitution of India. We are of the opinion, let entire controversy about the eligibility and financial position of the petitioners – societies for the tender in question be decided by the Secretary, Irrigation Department, Government of Punjab, within ten days from today. 11. Petitioners – societies are directed to submit representation(s) before the Secretary, Irrigation Department, Government of Punjab, who shall decide about the eligibility, credibility and financial condition of petitioners – societies for the award of work, within ten days from today. Till the decision is taken by the Secretary, Irrigation Department, Government of Punjab, in the light of observations made hereinabove, respondents shall not proceed further. 12. Writ petition stands disposed of in the aforesaid terms. ( Alok Singh ) Judge ( Adarsh Kumar Goel ) 27.05.2010 Judge sk.