IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 6798 of 2010 Decided on: 26.5.2011. __________________________________________________________ M/s Sainj Valley Hydro Power and Construction Company Pvt. Ltd. … Petitioner. Versus State of H.P. and others. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Anjay Mohan Goel, Advocate. For the respondents : Mr. Vikas Rathore, Dy.A.G. ___________________________________________________________ Justice V.K. Sharma (Oral). The petition has been filed on the following prayers:- (i) That this Hon’ble Court may be pleased to issue a writ of certiorari quashing the reply to the legal notice, dated 27.3.2010 (Annexure P- 7), as well as communication, dated 21.1.2010 (Annexure P-5), vide which the registration case of the petitioner Company has been returned back by respondent No.3. (ii) That this Hon’ble Court may be pleased to issue a writ of mandamus directing respondent No.3 to register the petitioner Company as Class A contractor with the H.P. Public Works Department for B&R works.” 2. In reply on behalf of the respondents, the following stand has been taken vide para 4 of the preliminary submissions and para 3 on merits:- “Preliminary submissions: 4. That there are no separate rules for registration of company as a contractor and rules provided for registration of individual, firm or partnership 1 Whether reports of the local papers may be allowed to see the judgment? No. 2 are applied to the companies while registering them. On merits: 3. That the contents of this para are admitted to the extent of submission of application in the office of respondent No.3 on 24.5.2008. However, it is denied that the petitioner had submitted all the documents required for enlistment as Class-A contractor for B&R works in the HP PWD as per instructions issued from the office of respondent. The petitioner had failed to submit the experience/work done certificate to the effect that the contractor has satisfactorily executed at least three works of not less than Rs. 25 lacs/7.50 lacs each and aggregate of all works executed should not be less than Rs. 125 lacs/30 lacs for Class-A contractor and Class-B contractors. Since in the present case, the petitioner has not executed any work and had no past experience of construction of building, roads, bridges and other works and hence the petitioner company can’t be registered in the category of Class-A contractor.” 3. Rejoinder refuting the above stand on behalf of the respondents and re-iterating the averments set up in the petition has been filed. 4. The controversy involved in the present writ petition revolves around the eligibility of the petitioner-Company vis-à-vis its entitlement for enlistment as Class-A contractor. The prayer of the petitioner-Company for such enlistment has been turned down by the respondents on the ground that it has not past experience in building works and its memorandum of association does not include a ‘Civil Engineer’ as a Director. 3 5. The instructions regarding ‘Up-Gradation/ Enlistment/ Renewal’ of Class A & B contractors are contained in letter dated 24.7.2009, Annexure P-4, Clause 4 whereof reads as under:- “An affidavit from the Engineers who have been employed by the Contractor alongwith their Degree/Diploma certificates duly attested by the Executive Magistrate for Up-gradation Cases & other cases.” 6. A perusal of the above instruction would go to show that the requirement thereunder is only with regard to filing of affidavits from the Engineers employed by the contractor alongwith their Degree/Diploma certificates duly attested by an Executive Magistrate. 7. In reply, Annexure P-7, dated 27.3.2010 to the legal notice served by the petitioner-Company upon respondent No.3, the Chief Engineer (Central Zone), the following position has been taken by the said respondent:- “However it is informed that the documents submitted by your client are incomplete as your client the above named firm has not included a Civil Engineer in his firm by incorporating his name in memorandum of association which is a pre-condition for registration of a firm as Class-A contractor as per Govt. notification No. PBW (B&R)-19(7)/87 dt. 12.3.93 under clause 6 (d) which read as under:- ‘The contractor or firm having no past experience of building & road work is also eligible for enlistment in this class provided the working capital is not less than Rs. 1.00 lacs. The individual or one of the partners of the firm should however, be a qualified Graduate Engineer with not less than five years experience or a qualified oversee (Diploma Holder) with fifteen years experience’.” 4 8. In view of the above, it is apparent that according to the respondents, the documents submitted by the petitioner- Company for registration as A Class contractor were incomplete inasmuch as it had not included a Civil Engineer as a Director by incorporating his name in the memorandum of association, which is a pre-condition for registration of a firm as Class-A contractor as per clause 6 (d) of Government notification No. PBW (B&R)- 19(7)/87 dt. 12.3.93, which stands already extracted hereinabove. However, on a plain reading of clause 6 (d), it would be evident that the same applies to an individual contractor or a partnership firm. According to the respondents, there are no separate instructions with regard to companies and the instructions applicable to individual contractors and partnership firms are applicable mutatis mutandis. 9. The learned counsel for the petitioner-Company has very fairly submitted at the bar that in case there is any express condition with regard to notification of the name of a Director of the Company, who essentially is a Civil Engineer, there can be no dispute that the petitioner-Company or for that reason any other applicant is legally obliged to fulfil such condition. However, according to him, in the absence of an express condition governing companies the condition applicable to individuals and partnership firms cannot be ipso facto made applicable to companies and more so, in view of clause 4 of instructions dated 24.7.2009, Annexure P- 4, wherein it is specifically stated that the only requirement is with regard to filing of affidavits from the Engineers, who have been employed by the contractor alongwith their Degree/Diploma certificates duly attested by an Executive Magistrate. (Emphasis supplied) 10. In view of the above, the petition is disposed of with a direction to the respondents to afford an opportunity of being heard 5 to the petitioner-Company through its duly authorized representative and to bring to its notice the short-comings in the documents submitted by it for registration as A Class contractor with specific reference to the condition which requires that in the case of a company one of its Directors is essentially be a Civil Engineer and his name should be included in the memorandum of association. This exercise shall be undertaken within four weeks from the date of production of copy of this judgment by the petitioner-Company to respondent No.2. In case there is any short- coming in the application or the documents submitted therewith, the petitioner-Company shall be specifically apprised about the same and an opportunity shall be afforded to it to rectify the same by doing the needful within reasonable time. It is made clear that letter dated 21.1.2010, Annexure P-5, whereby the registration case in respect of the petitioner-Company for enlistment as A Class contractor was returned on the aforesaid objection, would not come in the way of the respondents to undertake the above exercise in terms of this judgment. 11. The petition stands disposed of in the above terms, so also pending application(s), if any. (Justice V.K. Sharma) May 26, 2011. Judge. (cr)