BUILDERS ASSOCIATION OF INDIA vs STATE OF KERALA - 2024 Supreme(Online)(KER) 27802

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2024 Supreme(Online)(KER) 27802

`IN THE HIGH COURT OF KERALA AT ERNAKULAM`

`PRESENT`

`THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE`

`&`

`THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN`

`THURSDAY, THE 11`^TH `DAY OF APRIL 2024 / 22ND CHAITHRA, 1946`

`WA NO. 44 OF 2021`

`AGAINST THE JUDGMENT DATED IN WP(C) NO.3760 OF 2020 OF HIGH`

`COURT OF KERALA`

`APPELLANT/S:`

`1`

`CHERIAN VARKEY CONSTRUCTION COMPANY (PVT) LTD.`

`ENGINEERS AND CONTRACTORS, VTH FLOOR, ALFA PLAZA,`

`K.P.VALLON ROAD, KADAVANTHRA, KOCHI - 682 020`

`REPRESENTED BY ITS DIRECTOR, REJI M.CHERIAN.`

`2`

`REJI M.CHERIAN`

`AGED 50 YEARS`

`S/O.CHERIAN VARKEY, SHAREHOLDER AND DIRECTOR, CHERIAN`

`VARKEY CONSTRUCTION COMPANY (PVT) LTD., ENGINEERS AND`

`CONTRACTORS, VTH FLOOR, ALFA PLAZA, K.P.VALLON ROAD,`

`KADAVANTHRA, KOCHI - 682 020.`

`3`

`SAJI V.CHERIAN`

`AGED 52 YEARS`

`S/O.CHERIAN VARKEY, SHAREHOLDER AND DIRECTOR, CHERIAN`

`VARKEY CONSTRUCTION COMPANY (PVT) LTD., ENGINEERS AND`

`CONTRACTORS, VTH FLOOR, ALFA PLAZA, K.P.VALLON ROAD,`

`KADAVANTHRA, KOCHI - 682 020.`

`BY ADVS.`

`SANTHOSH MATHEW`

`SRI.ARUN THOMAS`

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`SRI.JENNIS STEPHEN`

`SRI.VIJAY V. PAUL`

`SMT.KARTHIKA MARIA`

`SRI.ANIL SEBASTIAN PULICKEL`

`SMT.DIVYA SARA GEORGE`

`SMT.JAISY ELZA JOE`

`SHRI.ABI BENNY AREECKAL`

`RESPONDENT/S:`

`1`

`STATE OF KERALA`

`REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY -`

`FINANCE, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT,`

`THIRUVANANTHAPURAM - 695 001.`

`2`

`THE SECRETARY TO THE GOVERNMENT`

`DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT,`

`THIRUVANANTHAPURAM - 695 001.`

`3`

`THE SECRETARY TO THE GOVERNMENT`

`PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT,`

`THIRUVANANTHAPURAM- 695 001.`

`4`

`KERALA ROAD FUND BOARD`

`PROJECT MANAGEMENT UNIT, SREEBALA BUILDINGS, TC`

`11/339, 5TH FLOOR, KESTON ROAD, NANTHANCODE, KOWDIAR`

`P.O., THIRUVANANTHAPURAM - 695 003 REPRESENTED BY ITS`

`PROJECT MANAGER.`

`5`

`KERALA INFRASTRUCTURE INVESTMENT FUND BOARD`

`2ND FLOOR, FELICITY SQUARE, MG ROAD, STATUE,`

`THIRUVANANTHAPURAM - 695001 REPRESENTED BY ITS CHIEF`

`EXECUTIVE OFFICER.`

`6`

`URALUNGAL LABOUR CONTRACT CO-OPERATIVE SOCIETY`

`LTD.NO.10957`

`MADAPPALLY COLLEGE P.O., VADAKARA, KOZHIKODE - 686`

`546. REPRESENTED BY ITS PRESIDENT.`

`7`

`P.G.MURALEEDHARAN`

`AGED 59, S/O.GOVINDAN, ARYA SADANAM, PERUMPALAM P.O. -`

`685 570`

`8`

`K.THAVAMONY`

`AGED 53 YEARS, S/O.KUNJU PILLAI, CHALIL HOUSE,`

`PERUMBALAM P.O., ALAPPUZHA DISTRICT - 685 570.`

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`ALLD.R9`

`ELETHINKARA LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD`

`NO. 1020, REPRESENTED BY ITS PRESIDENT SABY. P.V ,`

`ELETHINKARA (ADDL.R9 IMPLEADED AS PER ORDER ON IA`

`1/2023 DTD.11/4/2024)`

`BY ADVS.`

`SRI.K.GOPALAKRISHNA KURUP, ADVOCATE GENERAL`

`SHRI K.V.MANOJ, SR.GP`

`SRI.M.SASINDRAN`

`SRI.ATHUL SHAJI`

`V.M.KRISHNAKUMAR`

`SHRI S.SHYAM KUMAR`

`RENJITH THAMPAN (SR.)`

`SHRI.ANWIN JOHN ANTONY`

`THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/1/2024,`

`ALONG WITH WA.47/2021, 16921/2023 AND CONNECTED CASES, THE COURT`

`ON 11/4/2024 DELIVERED THE FOLLOWING:`

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`IN THE HIGH COURT OF KERALA AT ERNAKULAM`

`PRESENT`

`THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE`

`&`

`THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN`

`THURSDAY, THE 11`^TH `DAY OF APRIL 2024 / 22ND CHAITHRA, 1946`

`WA NO. 47 OF 2021`

`AGAINST THE JUDGMENT DATED IN WP(C) NO.3189 OF 2020 OF HIGH`

`COURT OF KERALA`

`APPELLANT/S:`

`CHERIAN VARKEY CONSTRUCTION COMPANY (PVT) LTD.`

`ENGINEERS AND CONTRACTORS, VTH FLOOR, ALFA PLAZA, K.`

`P. VALLON ROAD, KADAVANTHRA, KOCHI - 682020,`

`REPRESENTED BY ITS DIRECTOR, REJI M. CHERIAN.`

`BY ADVS.`

`SANTHOSH MATHEW`

`SRI.ARUN THOMAS`

`SRI.JENNIS STEPHEN`

`SRI.VIJAY V. PAUL`

`SMT.KARTHIKA MARIA`

`SRI.ANIL SEBASTIAN PULICKEL`

`SMT.DIVYA SARA GEORGE`

`SMT.JAISY ELZA JOE`

`SHRI.ABI BENNY AREECKAL`

`SMT.LEAH RACHEL NINAN`

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`RESPONDENT/S:`

`1`

`STATE OF KERALA`

`REPRESENTED BY ITS SECRETARY TO GOVERNMENT, PUBLIC`

`WORKS DEPARTMENT, GOVERNMENT SECRETARIAT,`

`THIRUVANANTHAPURAM - 695 001.`

`2`

`KERALA ROAD FUND BOARD`

`PROJECT MANAGEMENT UNIT, SREEBALA BUILDINGS, TC`

`11/339, 5TH FLOOR, KESTON ROAD, NANTHANCODE, KOWDIAR`

`P. O., THIRUVANANTHAPURAM - 695 003., REPRESENTED BY`

`ITS PROJECT MANAGER.`

`3`

`URALUNGAL LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD.`

`NO.10957, MADAPPALLY COLLEGE P.O., VADAKARA, KOZHIKODE`

`- 686546, REPRESENTED BY ITS PRESIDENT.`

`4`

`P. G. MURALEEDHARAN`

`AGED 59 YEARS`

`S/O. GOVINDAN, ARYA BHAVAN, PERUMPALAM P. O., PIN -`

`685 570.`

`BY ADVS.`

`SRI.K.GOPALAKRISHNA KURUP, ADVOCATE GENERAL`

`SHRI K.V.MANOJ, SR.GP`

`SRI.M.SASINDRAN`

`SRI.ATHUL SHAJI`

`SHRI.ANWIN JOHN ANTONY`

`SHRI S.SHYAM KUMAR`

`THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/1/2024,`

`ALONG WITH WA.44/2021 AND CONNECTED CASES, THE COURT ON`

`11/4/2024 DELIVERED THE FOLLOWING:`

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`IN THE HIGH COURT OF KERALA AT ERNAKULAM`

`PRESENT`

`THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE`

`&`

`THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN`

`THURSDAY, THE 11`^TH `DAY OF APRIL 2024 / 22ND CHAITHRA, 1946`

`WP(C) NO. 16921 OF 2023`

`PETITIONER/S:`

`1`

`AF INFRASTRUCTURE PRIVATE LIMITED`

`2ND FLOOR, ROYAL PLAZA, BRIDGE ROAD, ALUVA, ERNAKULAM,`

`KERALA - 683101 REPRESENTED BY ITS MANAGING DIRECTOR`

`SHRI. ABDUL FAIZY, PIN - 683101`

`2`

`P.K. SULPHEEKER & COMPANY`

`BUILDING NO.3/447 E GF. PADMINI APARTMENT, BEHIND`

`NADAKKAVU POST OFFICE, NADAKKAVU, KOZHIKODE, KERALA -`

`673011 REPRESENTED BY ITS MANAGING PARTNER SHRI. SUNAS`

`P.K., PIN` `–` `673011`

`BY ADVS.`

`SANTHOSH MATHEW`

`ARUN THOMAS`

`KARTHIKA MARIA`

`ANIL SEBASTIAN PULICKEL`

`VEENA RAVEENDRAN`

`MATHEW NEVIN THOMAS`

`ABI BENNY AREECKAL`

`KURIAN ANTONY MATHEW`

`MANASA BENNY GEORGE`

`KARTHIK RAJAGOPAL`

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`RESPONDENT/S:`

`1`

`STATE OF KERALA`

`REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, PUBLIC`

`WORKS DEPARTMENT, GOVERNMENT SECRETARIAT,`

`THIRUVANANTHAPURAM, KERALA - 695001, PIN - 695001`

`2`

`PROJECT DIRECTOR`

`KERALA ROAD FUND BOARD-PROJECT MANAGEMENT UNIT, GROUND`

`FLOOR, BSNL OFFICE BUILDING, CGM(O) DOORSANCHAR`

`BHAVAN, PMG JUNCTION, THIRUVANANTHAPURAM, KERALA -`

`695033, PIN` `–` `695033`

`3`

`URALUNGAL LABOUR CONTRACT CO-OPERATIVE SOCIETY`

`PO MADAPPALLY COLLEGE, VATAKARA, KOZHIKODE, KERALA -`

`673102 REPRESENTED BY ITS MANAGING DIRECTOR, PIN` `–`

`673102`

`4`

`KERALA ROAD FUND BOARD`

`GROUND FLOOR, BSNL OFFICE BUILDING, CGM(O) DOORSANCHAR`

`BHAVAN, PMG JUNCTION, THIRUVANANTHAPURAM, KERALA -`

`695033 REPRESENTED BY ITS PROJECT DIRECTOR, PIN` `–`

`695033`

`5`

`KERALA INFRASTRUCTURE INVESTMENT FUND BOARD`

`2ND FLOOR, FELICITY SQUARE, MG ROAD, STATUE,`

`THIRUVANANTHAPURAM, KERALA - 695001 REPRESENTED BY ITS`

`CHIEF EXECUTIVE OFFICER, PIN - 695001`

`BY ADVS.`

`BY ADVS.`

`SRI.K.GOPALAKRISHNA KURUP, ADVOCATE GENERAL`

`SHRI K.V.MANOJ, SR.GP`

`Shri M.SASINDRAN`

`SHRI S.SHYAM KUMAR`

`THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON`

`15/1/2024, ALONG WITH WA.44/2021 AND CONNECTED CASES, THE COURT`

`ON 11/4/2024 DELIVERED THE FOLLOWING:`

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`IN THE HIGH COURT OF KERALA AT ERNAKULAM`

`PRESENT`

`THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE`

`&`

`THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN`

`THURSDAY, THE 11`^TH `DAY OF APRIL 2024 / 22ND CHAITHRA, 1946`

`WP(C) NO. 23696 OF 2023`

`PETITIONER/S:`

`MALABAR TECH`

`203, 177/33, VICTORY TOWER, KACHERIPADI, MANJERI,`

`MALAPPURAM, KERALA REPRESENTED BY MANAGING PARTNER,`

`ABDUL RAFEEQUE.N, AGE 50 YEARS, S/O ABDURAHIMAN`

`HAJIRESIDING AT NOORENGAL HOUSE MELMURI POST,`

`MALAPPURAM DT, PIN - 676121`

`BY ADVS.`

`O.A.NURIYA`

`MATHEWS RAJU`

`HARIS BEERAN`

`ANAND B. MENON`

`REVATHY P. MANOHARAN`

`RESPONDENT/S:`

`1`

`THE PROJECT DIRECTOR`

`KERALA ROAD FUND BOARD, BSNL BUILDING, PMG JUNCTION,`

`TRIVANDRUM - 695003., PIN - 695003`

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`2`

`URALUNGAL LABOUR CONTRACT CO-OPERATIVE SOCIETY`

`LIMITED,`

`MADAPPALLI COLLEGE P.O., VADAKARA, KOZHIKODE - 673102,`

`REPRESENTED BY ITS CHAIRMAN., PIN - 673102`

`3`

`STATE OF KERALA`

`REPRESENTED BY SECRETARY TO GOVERNMENT, PUBLIC WORKS`

`DEPARTMENT, GOVERNMENT SECRETARIAT,`

`THIRUVANANTHAPURAM-695001, PIN - 695001`

`BY`

`BY ADVS.`

`SRI.K.GOPALAKRISHNA KURUP, ADVOCATE GENERAL`

`SHRI K.V.MANOJ, SR.GP`

`ADV M.SASINDRAN`

`SHRI S.SHYAM KUMAR`

`THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON`

`15/1/2024, ALONG WITH WA.44/2021 AND CONNECTED CASES, THE COURT`

`ON 11/4/2024 DELIVERED THE FOLLOWING:`

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`IN THE HIGH COURT OF KERALA AT ERNAKULAM`

`PRESENT`

`THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE`

`&`

`THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN`

`THURSDAY, THE 11`^TH `DAY OF APRIL 2024 / 22ND CHAITHRA, 1946`

`WP(C) NO. 27723 OF 2023`

`PETITIONER/S:`

`1`

`BUILDERS ASSOCIATION OF INDIA`

`AGED 50 YEARS`

`G-1/G-20, COMMERCE CENTRE, J. DADAJEE ROAD, TARDEO,`

`MUMBAI, REPRESENTED BY ITS AUTHORISED SIGNATORY, SHRI.`

`SABU THOMAS, PIN - 400034`

`2`

`SABU THOMAS`

`AGED 50 YEARS`

`S/O. C.V. THOMAS, KOTTISSERI KUDIYARI, KOTHAMANGALAM,`

`ERNAKULAM DISTRICT., PIN - 686691`

`3`

`MANU J NAIR`

`AGED 38 YEARS`

`S/O. V.K. JANARDHANAN NAIR, VADAKKEPUTHANPURA,`

`VARAPETTY P.O., KOTHAMANANGALAM, ERNAKULAM., PIN` `–`

`686691`

`BY ADVS.`

`SANTHOSH MATHEW`

`ARUN THOMAS`

`KARTHIKA MARIA`

`ANIL SEBASTIAN PULICKEL`

`SHINTO MATHEW ABRAHAM`

`ABI BENNY AREECKAL`

`MATHEW NEVIN THOMAS`

`KURIAN ANTONY MATHEW`

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`RESPONDENT/S:`

`1`

`STATE OF KERALA`

`REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT,`

`GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA .,`

`PIN` `–` `695001`

`2`

`DEPARTMENT OF COOPERATION`

`GOVERNMENT OF KERALA REPRESENTED BY THE SECRETARY TO`

`THE GOVERNMENT, DEPARTMENT OF COOPERATION, GOVERNMENT`

`SECRETARIAT, THIRUVANANTHAPURAM, KERALA., PIN - 695001`

`3`

`URALUNGAL LABOUR CONTRACT CO-OPERATIVE SOCIETY`

`PO MADAPPALLY COLLEGE, VATAKARA, KOZHIKODE, KERALA ,`

`REPRESENTED BY ITS MANAGING DIRECTOR, PIN - 673102`

`4`

`PUBLIC WORKS DEPARTMENT`

`GOVERNMENT OF KERALA REPRESENTED BY THE SECRETARY TO`

`THE GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT`

`SECRETARIAT, THIRUVANANTHAPURAM, KERALA., PIN - 695001`

`5`

`FINANCE DEPARTMENT`

`GOVERNMENT OF KERALA REPRESENTED BY THE SECRETARY TO`

`THE GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT`

`SECRETARIAT, THIRUVANANTHAPURAM, KERALA ., PIN` `–`

`695001`

`BY`

`BY ADVS.`

`SRI.K.GOPALAKRISHNA KURUP, ADVOCATE GENERAL`

`SHRI K.V.MANOJ, SR.GP`

`ADV M.SASINDRAN`

`SHRI S.SHYAM KUMAR`

`THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON`

`15/1/2024, ALONG WITH WA.44/2021 AND CONNECTED CASES, THE COURT`

`ON 11/1/2024 DELIVERED THE FOLLOWING:`

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`A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ.`

`------------------------------------------------`

`W.A.Nos.44/2021 and 47/2021` `“ C.R.”`

`&`

`W.P.(C).Nos.16921/2023, 23696/2023 and 27723/2023`

`---------------------------------------------------`

`Dated this the 11`^th `day of April, 2024`

JUDGEMENT

A.Muhamed Mustaque, J. These matters raise a challenge to government orders that grant preference to labour contract societies up to 10% over the quoted amount of the lowest bidder. These matters are at the instance of private contractors and are arising from writ petitions negating the challenge by the learned Single Judge. Additionally, there are fresh writ petitions contesting the government orders and consequential stipulations in the notice inviting tenders.

Since the questions to be considered in all these matters are the same, it is appropriate that all these cases are disposed of by a common judgment.

2. The Government of Kerala, by an order dated 13/11/1997 decided to accord preference to labour societies. In that Government order, the maximum value of the work at a time that can be undertaken by 'A' class society is for an amount of Rs.50 lakhs, 'B' class society is Rs.30 lakhs and 'C' class society is Rs.10 lakhs. The labour society will have a preference for the award of the work if their tender is up to 10% of the lowest tender. It outlined eligibility conditions such as a minimum 50 labourers as actual members of society and sympathisers up to 10% of the actual membership. Subsequently, through another order dated 19/3/2004, the Government stated that labour societies are not eligible for any price preference for the contract administered by the Public Works Department (PWD). Thereafter, another order of the Government dated 2/8/2008 restored the priority benefits of the Government order dated 13/11/1997 to the Uralungal Labour Contract Co- operative Society Ltd. (hereinafter referred to as “ULCCS”) without any restriction on financial limits. Furthermore, the PWD Department issued another order dated 19/3/2020 allowing labour contract societies subject to class of registration, to participate in tenders floated by the Government with eligibility for price preference up to 10% over the quoted amount of the lowest bidder.

On 4/11/2020, the Co-operative Department of the Government issued another order on a request from the Managing Director of ULCCS to undertake all types of work on preferential treatment. Accordingly, the Government granted sanction to ULCCS to have preference of work in the light of government order dated 13/11/1997. The Government by an order dated 13/6/2023 exempted ULCCS from producing eligibility certificates, in the light of the fact that the above society has been recognised as an accredited agency by the Government.

3. In the matters pertaining to writ appeals, the challenges were raised against these orders. The learned Single Judge negated the challenge, holding that the preference is given to the ULCCS as a matter of State policy and does not involve any infringement of fundamental rights in this matter. Some of the writ petitions raising similar challenges have also been tagged. These writ petitions raised additional challenges to the subsequent government orders that modified the PWD manual to ensure preference for labour societies, especially ULCCS.

4. We heard the matter in detail. We heard Shri Santhosh Mathew who appeared for the appellant in the writ appeals and for the writ petitioner a Builders Association of India and others in W.P.(C).No.27723/2023 and connected writ petitions. We heard Shri Haris Beeran, who appeared for the writ petitioner in W.P (C) 23696/2023. We also heard the learned Advocate General Shri K.Gopalakrishna Kurup and Shri M.Sasindran who appeared for ULCCS. While the writ petitions and appeals pertain to certain awarded and proposed contracts, we will not delve into the specifics of each contract, as they all hinge on the substantial challenge raised against the government order giving price preference to ULCCS in the government order.

Submissions:

5. The learned counsel, Shri Santhosh Mathew, submitted that the government orders are arbitrary and illegal. Firstly, on the ground that the fundamental rights of private contractors have been violated by ex

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