Abner Impex Traders vs. State Of Kerala - Kerala High Court, 29 March 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY ,THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941 WP(C).No. 9223 of 2019 PETITIONER: ABNER IMPEX TRADERS BUILDING 3/250, EDAVOOR.P.O., ERNAKULAM DISTRICT, KERALA, PIN-683544, REPRESENTED BY ITS SOLE PROPRIETOR, AKHIL K RAMESH, AGED 32 YEARS, S/O.K.V.RAMESH, KODIYAPPATTUKUDY HOUSE, EDAVOOR.P.O., ERNAKULAM DISTRICT, PIN-683544. BY ADV. SRI.RAJESH VIJAYAN RESPONDENTS: 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CIVIL SUPPLIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE KERALA STATE CIVIL SUPPLIES CORPORATION LIMITED, MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, KOCHI-682019, REPRESENTED BY ITS MANAGER. 3 THE MANAGING DIRECTOR, THE KERALA STATE CIVIL SUPPLIES CORPORATION LIMITED, MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, KOCHI- 682019. 4 THE ADDITIONALGENERAL MANAGER (MARKETING), THE KERALA STATE CIVIL SUPPLIES CORPORATION LIMITED, MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, KOCHI- 682019. R1 BY SENIOR GOVERNMENT PLEADER SRI. B VINOD R2 TO R4 BY SMT.MOLLY JACOB, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J U D G M E N T

WP(C).No. 9223 of 2019 2 This writ petition is filed by the petitioner seeking the following reliefs: i) Issue a writ of certiorari calling for the records leading to Ext.P8 and quash the same. ii) To declare that the petitioner firm is entitled to conduct work as per Ext.P4. iii) Grant such other reliefs as this Honourable Court may deem fit and proper in the circumstances of the case.

Material facts for the disposal of the writ petition are as follows; petitioner firm submitted tender to the Civil Supplies Corporation viz., 2nd respondent for sale of flood affected paddy and rice. Petitioner was called for negotiation and the quoted rate was re-fixed in the negotiation. However, thereafter, petitioner received communication from the 3rd respondent to show cause why he should not be disqualified on the ground the proprietor of the petitioner concern being the son of a contracted mill owner of the Civil Supplies Corporation. Though petitioner preferred reply, without providing an opportunity, Ext.P8 was issued disqualifying the petitioner from carrying out the work. The case projected by the petitioner concern is that, petitioner concern is a proprietary one and it is

WP(C).No. 9223 of 2019 3 never an agent or the owner of any contracted mill but he is an independent entity. Petitioner has also relied upon Ext.P9 judgment of a Division Bench of this Court in W.P.(C) No.3923/2019 wherein the issue was considered by the Division Bench and held that, the such an entity cannot be treated as an agent or having any connection with the mills under contract with the Civil Supplies Corporation.

I have heard learned counsel for petitioner, learned Standing Counsel appearing for respondents 2 & 3 and perused the pleadings and documents on record.

On the previous posting day, petitioner was directed to place an affidavit before this court undertaking that, petitioner will supply the particular product only for industrial production. Accordingly, an affidavit is placed before this court dated 29.3.2019. Learned Standing Counsel for respondents 2 & 3 pointed out that, petitioner has not specifically mentioned in the affidavit that, they will supply the product only to the mill viz., Akshaya Bio Fuels, Kuzhiyampadam, Manjapra.P.O., Angamaly, Ernakulam and has also stated, if appropriate affidavit is placed before the 3rd respondent, the

WP(C).No. 9223 of 2019 4 issue will be re-considered.

In that view of the matter, the writ petition is disposed of directing the petitioner to place an affidavit to satisfy the requirements put-up by the 3rd respondent within a week from the date of receipt of a copy of this judgment and if such an affidavit is placed, the issue shall be re-considered de hors the findings contained under Ext.P8 order passed by the 3rd respondent, at the earliest possible time and at any rate within ten days thereafter. Smv 29.3.2019 SHAJI P.CHALY JUDGE

WP(C).No. 9223 of 2019 5 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1OF THE TENDER NOTICE DATED 12.10.2018. EXHIBIT P2OF THE GST REGISTRATION CERTIFICATE. EXHIBIT P3OF THE ACKNOWLEDGMENT OF TENDER SUBMISSION. EXHIBIT P4OF THE ACKNOWLEDGMENT OF TENDER SUBMISSION AFTER NEGOTIATION. EXHIBIT P5OF THE COMMUNICATION FROM AKSHAYA BIO FUELS. EXHIBIT P6OF THE COMMUNICATION DATED 16.1.2019. EXHIBIT P7OF THE REPLY FILED BY THE PETITIONER. EXHIBIT P8OF THE COMMUNICATION ISSUED BY THE RESPONDENTS DATED 7.2.2019. EXHIBIT P9OF THE JUDGMENT IN WPC.3923/2019.