Madras High Court
N.L.C. Contractors' Sangam, Rep. By Its ... vs The Chairman Cum Managing Director, ... on 22 April, 2003
Equivalent citations: (2003)2MLJ484
Author: C. Nagappan
Bench: C. Nagappan
JUDGMENT C. Nagappan, J.
1. This Writ Appeal is directed against the order of the learned single Judge dated 3.12.2002 rendered in W.P. No. 39982 of 2002.
2. The appellant is an Association namely Neyveli Lignite Corporation Contractors' Sangam, represented by its General Secretary, while the first respondent is the Neyveli Lignite Corporation, the respondents 2 to 4 are its administrators and the respondents 5 to 8 are the successful tenderers.
3. The matter relates to the tender works notified by the first respondent i.e. Neyveli Lignite Corporation in respect of Annual Maintenance Contract. The contracts are of two types, 'A' Schedule, which is inclusive of the materials and issued for open participation to all the contractors and without rate fixation, and 'B' Schedule, which is a labour contract for which payments are made on unit basis without supply of materials. Complaint is with regard to Clause 16 of the Notification relating to 'B' Schedule, which reads as follows:
"16. Cases of Equal bidding:
In cases of equal bidding, the successful bidder will be selected on the following priority:
i. Priority - 1: Other things being equal, preference will be given to Contractors who have surrendered their land/house for NLC Projects. In case of more than one such qualified persons, decision will be taken based on LOT system among land/house evictees only.
ii. Priority - 2: If no land displaced person as above is available, preference will be given to SC/ST contractors. In case of more than one such persons, decision will be taken based on LOT system among SC/ST candidates only.
iii. Priority - 3: If no displaced SC/ST bidders are available, preference will be given to NLC Registered contractors. In case of more than one such persons, decision will be taken based on LOT system among the NLC Registered contractors only.
iv. Priority - 4: If no bidder is available in the above category, lot will be conducted among the available bidders.
v. Any person can avail such concession only once in a financial year in a particular unit.
vi. Firms/companies are not eligible for such concession."
4. The learned single Judge has dismissed the writ petition on two grounds, viz., (i) there is no discrimination made out so as to violate Article 14 of Indian Constitution and (ii) that the writ petition is not maintainable as it is not having the approval of all the members and that there is no resolution authorising the filing of the writ petition.
5. Mr. K.M. Vijayan, learned senior counsel appearing for the appellant, strenuously contends that both the reasons assigned by the learned single Judge are unsustainable in law and that the Writ Appeal has to be allowed striking down the offending Clause 16 of the Tender Conditions relating to B Schedule works.
6. Mr. N.A.K. Sarma, learned counsel appearing for the respondents 1 to 4, counters the above argument stating that there is no discrimination played in allotting the works and only priorities are shown if all the things are equal and that it does not fall within the vice of discrimination. He also submitted that apart from the fact that the appellant had become defunct, there is no election, that there is no resolution authorising the signatory to the writ petition to file the writ petition, that some of the members of the appellant Association had also participated in tenders and expressed in writing that they have got no objection for the impugned clause and that the writ petition is not maintainable as the Association cannot maintain the writ petition under Article 14 of Indian Constitution complaining of violation of equality clause under Article 14 of Indian Constitution.
7. Dealing with the maintainability of the writ petition first, the learned single Judge has observed that in response to the contention of the appellant Association having become defunct and there being no resolution authorising the filing of the writ petition, no record has been produced before him to sustain the concerted action of the Association. Even now, there is nothing produced before us to prove that the appellant Association had been functioning and that there is any authorisation to file this writ petition. The objection of the learned counsel for the respondents 1 to 4 then sustains.
8. But in so far as the maintainability on the touchstone of Article 14 of Indian Constitution is concerned, it is permissible for the Association to file Writ Petitions touching upon the equality clause but not touching upon any of the fundamental rights on the touchstone of Article 19 of Indian Constitution.
9. The writ petition could have been dismissed on the ground of the Association not filing the writ petition with due authorisation. But since the learned single Judge has also dealt with the merits, we also consider the other contention.
10. Mr. K.M. Vijayan, learned senior counsel, submits that all through there was no discrimination shown to a section of people for awarding tender works of Neyveli Lignite Corporation and that only recently, they have started doing so and that such discrimination violates Article 14 of Indian Constitution.
11. Mr. N.A.K. Sarma, learned counsel for the respondents 1 to 4, submits that there is no discrimination shown but all things being equal, only priority is given to the persons who have lost their lands, that if no such displaced persons are available, to the contractors belonging to SC/ST communities, that even if they are not available, then it goes to other contractors, who are registered Neyveli Lignite Corporation and that there is no violation of Article 14 of Indian Constitution.
12. Mrs. Nalini Chidambaram, learned senior counsel appearing for the sixth respondent, reiterates the arguments of Mr. N.A.K. Sarma. She also submits that the tenders, as scheduled, were opened on 20.11.2002 and that they have already been awarded to the sixth respondent and others similarly situated and that the works were also entrusted to them and they have been executing the works.
13. This entrustment of the works to the respondents 5 to 8 is not disputed. In so far as the contention based on the touchstone of Article 14 of Indian Constitution is concerned, one thing to be seen is whether there is any nexus for the object to be achieved so as not to fall within the vice of discrimination, which then results in violation of equality clause enshrined in Article 14 of Indian Constitution. We are fortified in this view of testing the preferential treatment on the touchstone of Article 14 of the Constitution on the legal principles stated by the Constitution Bench of the Supreme Court in INDRA SAWHNEY v. UNION OF INDIA . In the said case, the Supreme Court held that preference without reservation may be adopted in favour of the chosen classes of citizens by prescribing the norms and such preferences can be extended to all disadvantaged classes of citizens, whether or not they are victims of prior discrimination. The only test the Supreme Court prescribes for extending preference is backwardness or disadvantage of any kind, which the State has responsibility to ameliorate. The Supreme Court has made a distinction between the reservation and preferential treatment stating that in the former, the benefit is separately conferred on a group or a class or collectivity and the competition is provided amongst them only while in the latter, the collectivity is part of the same group but it is permitted some weightage due to social, economic or any justifiable reason. The Supreme Court further held that the validity of reservation depends upon Constitutional sanction while the preferential treatment stands on the test of reasonableness. Neyveli Lignite Corporation has acquired large chunks of land for mining lignite, which is used for generation of electricity catering to the needs of four southern states and also Union Territory of Pondicherry. Thousands of acres have been acquired for the above essential public utility service and a scheme was evolved to rehabilitate the deprived land holders and one of such schemes is the allotment of some works among those deprived land holders, who are capable of doing contract work, on priority basis. This cannot be termed as discriminatory as there is a valid cause for classification having nexus with the object to be achieved. In so far as preference for SC/ST contractors is concerned, there also it is not a reservation but is only a priority and all things being equal, SC/ST contractors are given preference. Hence, for a preferential treatment of the above classes, there is a nexus for the object to be achieved and as such, stands scrutiny to the test of reasonableness and does not infringe the equality clause enshrined in Article 14 of Indian Constitution.
14. In view of what is stated supra, we affirm the judgment of the learned single Judge and the Writ Appeal is dismissed. No costs. Consequently, W.A.M.P. No. 6239 of 2002 is closed.