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Judgment
T.R. Ravi, J
The petitioner society, registered with Ext.P1 bye-laws which has been approved by the respondent, is engaged in entering into and executing contracts with/for the Government and Local Self Government Institutions for the construction and repair of roads, wells, buildings, ponds, streams, and water-related projects. In Ext.P2 audit certificate and memorandum dated 10.02.2021 of the Assistant Director of Co-operative Societies (Audit), Irinjalakuda, deficiency has been noticed regarding the functioning of the Society, and it is stated that the Managing Committee should take up new projects to manage the loss. The Managing Committee at its meeting held on 24.06.2021 decided to frame sub-rules providing for undertaking contract works and the supply of materials for the same, and to submit the same for approval of the respondent. Ext.P3 is the said decision.
On 28.07.2021, the petitioner submitted Ext.P4 representation to the respondent, through the Assistant Registrar, Chalakudy, for approval of the sub rule, with the relevant documents. The respondent rejected the application by Ext.P5 letter dated 18.08.2022, stating that the permission for contract works can be given only to Labour Contract Co-operative Societies, as per Ext.P6 Government Order dated 13.11.1997. The Government had issued Ext.P7 Government Order dated 29.07.2022, modifying Sections 1912 and 1913 of the Kerala Public Works Department Manual, making it mandatory to have a valid contractor’s license from the Kerala PWD or from any State or Central Government Engineering Departments, having similar functions like Kerala PWD, to participate in bids floated by the PWD. The Executive Engineer, Idamalayar Irrigation Project Division No.2, Chalakudy, has granted contractor’s license to the petitioner as seen from Ext.P8 order dated 28-04-2021. The petitioner has hence challenged Ext.P5 order issued by the respondent, rejecting the request for approval of the sub rule which facilitates undertaking contract works.
The respondent has filed a counter affidavit. It is stated that the petitioner is a society registered under Rule 15(11)(1) of the Kerala Co-operative Societies Rules. Ext.R1(a) produced along with the counter affidavit is the copy of the categorical statement issued by the respondent, which says that the main object of the petitioner society is the development of small and marginal farmers. It is stated that after the amendment of the KCS Act on 25.11.2014 as per G.O.No.142/2014, the petitioner is categorised as a Miscellaneous Type Welfare society under Rule 15(12). It is stated that labour contract societies are categorised under Rule 15(9) with their object as the construction of buildings, roads, bridges, etc., in the Government/private/public sector. It is hence stated that by the amendment, the petitioner intends to expand the scope of its functioning to areas that do not come under Rule 15(12). It is further stated that whatever is contained in the Bye-laws, the provisions of the Act and Rules will prevail. It is stated that the audit report does not direct the petitioner to undertake labour contract projects. It is stated that Ext.P5 was rejected as the petitioner is not eligible. It is also stated that Ext.P8 order was obtained without the knowledge and permission of the Department.
Heard Smt.Daisy A Philipose on behalf of the petitioner and Sri Bimal K.Nath, Senior Government Pleader on behalf of the respondent.
The only reason stated in Exhibit P5 is that as per Exhibit P6 Government Order, only Labour Contract Co-Operative Societies are entitled to take up construction contracts of the Government. The above reasoning is without any legal or factual basis. A reading of Exhibit P6 will show that the Government Order only prescribes the terms and conditions for awarding Government works to Labour Contract Co-operative Societies. It states about certain preferences that are to be extended to Labour Contract Co-operative Societies who are quoting for works. The order does not say that no other cooperative society shall be entitled to take up any labour contract work. Exhibit P7 Government Order which the Public Works Department has issued, clearly says that a cooperative society can take a PWD contractor license if they satisfy the eligibility criteria and financial criteria set out in the respective licensing requirements as per the Government Orders. It further says that eligible price preference will be applicable for Labour Contract Co-operative Societies which have relevant valid Government Orders for availing such price preference. The above order clearly shows that a cooperative society which is having a PWD contractor license can participate in the bid but will not be eligible for the preferences that are available to a Labour Contract Society. Rule 15 only enables the classification of societies and does not in any manner curtail the rights of societies in their functioning. Exhibit P1 which is the approved by-law, specifically provides for taking up Government contracts. The request in Exhibit P4 is only for the approval of the sub-rules to facilitate the said object. As there is no prohibition for such activity, there is no justification for Exhibit P5. Exhibits P6 and P7 Government Orders also support the contention that the petitioner is entitled to take up such works.
In the result, the writ petition is allowed. Exhibit P5 is quashed. The respondent is directed to reconsider Exhibit P4 application in the light of the observations made above and pass orders approving the sub-rule if it is otherwise in order. It is, however, made clear that the petitioner will not be entitled to the benefits which are available to Labour Contract Co-operative Societies in the matter of taking up works of the Government, etc. Necessary orders shall be issued within three months of the date of receipt of a certified copy of this judgment.