HEMANT GUPTA J. - (1.) THIS judgment shall dispose of Civil Writ Petition No. 2456 and 3304 of 2008. In C.W.P. No. 2456 of 2008, the petitioner claims benefit of policy granting concession to the Co-operative Labour and Constructions Societies (for short the Societies) in the State of Haryana, whereas in C.W.P. No. 3304 of 2008 the challenge is to the action of the Punjab Government in not giving concession to the petitioner, a Society. Since the issues raised in these petition is common, the said petitions are taken up together for hearing.
(2.) THE State of Punjab published a notification on 10.09.1999 in continuation of earlier notification dated 16.8.1994 to grant concession to the societies for a further period of five years. The said policy contemplated that all unskilled works upto any value and skilled works upto the limit of Rs. 10,00,000/- should be allotted to the Societies by way of tenders within common schedule of rates fixed by Public Works Department, Punjab .Vide subsequent notification dated 22.12.2004, the Punjab Government extended the similar benefits but increased the limit of Rs. 10,00,000/- to Rs. 15,00,000/- in respect of skilled works. The relevant extract from the notification reads as under : - "In continuation of Punjab Government Notification No. 76/52/79- CI(V)/11209, dated 10.9.1999, the Governor of Punjab is pleased to grant the following concessions to the Co-operative Labour and Construction Societies in the State for a further period of 5 years i.e. upto 14th August, 2009. 1. All unskilled works upto any value and skilled works upto the limit of Rs. 15,00,000/- for each work should be allotted to these Societies only by way of tenders within common schedule of rates fixed by Public Works Department, Punjab. In case these societies fail to tender or do not accept the work within the celling rates to fixed, the work may be executed by inviting open tenders from both the contractors and the societies. 2. If more than one labour and Construction Society have offered tenders for a work, the lowest rate accepted will be made applicable to the other Societies as well for doing that work upto their capacity, the work left over be got executed by inviting open tenders from contractors as well as the Societies." On the other hand, in the State of Haryana, Similar notification was issued on 29.03.2007 extending the earlier notification dated 1.12.2004 granting concession to the Societies in the State of Haryana upto 31.03.2012. The said policy contemplated that all unskilled works upto any value will be reserved for the societies upto the rates approved for the concerned circle of Public works Department ; whereas all skilled works costing upto Rs. 30,00,000/- were reserved of such Societies. The relevant extract from the notification reads as under:- "No. 2293-C-7-2007/7941 - In supersession of Haryana Government Cooperation Department notification No. 3587-C-7/04/14579, dated 16th December, 2004, the Governor of Haryana hereby extends the following concession to Cooperative Labour and Construction Societies in the State of Haryana upto 31st March, 2012. (1)(a) All unskilled works upto any value will be reserved for Co- operative Labour Construction Societies upto the rates approved for concerned circle of the PWD in the immediate past for similar works after inviting tenders. (b) All skilled works costing upto Rupees thirty lacs each will be reserved for Co-operative Labour and Construction Societies upto the rates approved for the construction of the PWD in the immediate past for similar works after inviting tenders. (c) Skilled works include buildings, bridges and roads involving the use of heavy machinery. (d) In case Co-operative Labour and Construction Societies fail to tender or do not accept the works upto the approved rate then open tenders may be invited both from the contractors and Co-operative Labour and construction Societies."
(3.) IT has been argued by learned counsel for the petitioner that since the concession has been announced to be granted to the societies by necessary implication, there is prohibition of giving contract to any another person without giving an option to the societies to give their option for unskilled work upto unlimited value and skilled works upto the value of Rs. 30,00,000/- in the State of Haryana and upto Rs. 15,00,000/- in the State of Punjab. Reliance is placed upon decision of Supreme Court in Lachmi Narain etc. v. Union of India and others, A.I.R. 1976 S.C. 714, wherein it was held that if the provision is couched in prohibitive or negative language, it can rarely be directory ; the use of peremptory language in a negative form is per se indicative of the intent that the provision is to be mandatory. Thus, it is argued that since there is prohibition in the circular of the State Government that an offer is required to be given for all works of unskilled works upto unlimited value to the Societies, by necessary implication, it makes ineligible all other persons to complete for the tender. It is also argued that a Division Bench of this Court in M/s. Maya Construction Company and others v. State of Punjab, 2003(4) RCR(Civil) 840 : AIR 2004 Punjab and Haryana 35 has held that exclusion of private contractor in the process of award of contract is not unreasonable classification and, therefore, there is no violation of Articles 14 and 19(1)(g) of the Constitution of India. It was found that such notification does not create monopoly in favour of the societies. It confers certain concession on them. That was a writ petition filed by a contractor challenging the action of the State Government in framing the similar policy. In the aforesaid judgment, a Division Bench of this Court affirmed the view taken by a Single Bench of this Court in Surender Singh v. State of Haryana, AIR 1986 Punjab and Haryana 222. In the aforesaid case, it was held to the following effect :- "Where the Public Works Department of the State issued a direction by way of a notification stipulating that all unskilled works upto any value and skilled works upto the limit of Rs. 3 lacs for each work should be allotted to the Co-opertive Labour and Construction Societies by way of tenders within the ceiling rates fixed by the competent authority, the notification could not be said to be violative of Article 14 on ground of discrimination or on the ground that it created monopoly in favour of such societies to the exclusion of individual private contractors. If the Government, in the light of their experience of dealing with the private contractors, took a policy decision to prefer to co-operative societies for execution of their works, it cannot be held that there was any discrimination. Also, the impugned notification does not create any monopoly in favour of the Societies. It confers certain concessions on them. If the Societies fail to tender or do accept the work within the ceiling rates, option is left with the authorities concerned to get them executed by inviting open tenders from both the contractors and the societies. All that the impugned notification provides is that the societies are given an opportunity to execute the work within the ceiling rates fixed by the authorities, but if they do not agree to do so, then the matter become open to all and the work can be got executed by inviting open tenders from both the contractors and the societies. It is not that the private contractors are altogether excluded from consideration. Thus, the notification does not affect the right to carry on the trade by private contractors. The classification between the co-operative societies and the private contractors is reasonable one and has a direct nexus with the object intended to be achieved." ;