High Court
Legal Reasoning
wp-2465.241 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.2465 OF 2024M/s. Ambarwadikar and Company,Through its Partner Mr. Suryakant V. Ambarwadikar, Age-48 years, Occu:Business,Office at: “Ambarwadikar Complex,Surya Lawns Complex, Gut No.103,Near Datta Mandir, Beed By-Pass Road,Deolai, Aurangabad. ...PETITIONER VERSUS 1) The State of Maharashtra, Through Secretary, Water Resources Department, Having office at: Mantralaya, Mumbai-400032,2) Executive Engineer, Minor Irrigation Division No.1, Having Offce at: Sinchan Bhavan, Jalna Road, Aurangabad,3) Godavari Marathwada Irrigation Development Corporation, Through its Executive Director, Office at: Sinchan Bhavan, Jalna Road, Aurangabad,4) Executive Engineer, Godavari Marathwada Irrigation Development Corporation, Office at: Sinchan Bhavan, Jalna Road, Aurangabad,5) Chief Engineer, Water Resources Department, Office at: Sinchan Bhavan, Jalna Road, Aurangabad,
Legal Reasoning
wp-2465.2426) Superintendent Engineer, Minor Irrigation Division No.1, Office at: Sinchan Bhavan, Jalna Road, Aurangabad,7) Assistant Executive Engineer, Shivna TakaliCanal Sub-Division No.2, Office at: Sinchan Bhavan, Jalna Road, Aurangabad, 8) Assistant Chief Engineer, Aurangabad Irrigation Department, Office at: Sinchan Bhavan, Jalna Road, Aurangabad,9) Superintendent Engineer, Aurangabad Irrigation Division, Office at: Sinchan Bhavan, Jalna Road, Aurangabad. ...RESPONDENTS ... Mr. Rameshwar F. Totala Advocate h/f. Mr. V.S. Kabra Advocate for Petitioner. Mr. S.K. Shirse, A.G.P. for Respondent Nos. 1 and 2. Mr. Amit Yadkikar Advocate a/w. Mr. Akshay Kulkarni Advocate for Respondent Nos.3 and 4. ... CORAM: SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ. DATE : 5th MARCH, 2024 ORDER [PER SMT. VIBHA KANKANWADI, J.] :1.The petitioner, by invoking constitutional powers underArticle 226 of the Constitution of India and taking help of Article14 of the Constitution of India, has prayed that the records andproceedings of E-tender notice No. 19 for year 2023-2024 wp-2465.243(Online) and E-tender notice No. 20 for year 2023-2024 (Online)be called for. The petitioner also prays for issuing writ to declarethose two notices as null and void. 2.Heard learned Advocate Mr. Totala holding for learnedAdvocate Mr. Kabra for the petitioner, learned AGP Mr. Shirse forrespondent Nos. 1 and 2 and learned Advocate Mr. Yadkikaralong with learned Advocate Mr. Akshay Kulkarni for respondentNos. 3 and 4, on the first date of admission. 3.The petitioner has contended that it is a partnership firm towhom contract of construction of earthwork lining and structureof Canal No. 1 and distribution of Bramhagavan Lift IrrigationScheme Part-II, Taluka-Paithan, Distrct-Chhatrapati SambhajiNagar for estimated cost of Rs. 4494.86 Lakh was allotted videletter dated 25th October 2010. The petitioner says that due toillegal termination with malafide intention and for imposition ofpenalty, the petitioner approached the Commercial Court byfiling Commercial Suit No. 1 of 2023 and the said Suit is stillpending. The petitioner has also prayed for interim relief. Takinginto consideration the prima facie case, the interim relief wasgranted in favour of the petitioner which was continued till 8thFebruary 2024. In spite of interim order, the respondents have wp-2465.244violated the order passed by this Court and published anadvertisement in daily newspaper Divya Marathi on 22ndNovember 2023 inviting e-tender for the same work. Thepetitioner had taken objection to the same and stated that suchcalling of e-tender would amount to contempt of the orderpassed by this Court. A notice was also served on respondentNo. 2 with a request to cancel the action. Thereafter respondentNo. 2 published one more advertisement in Daily SakalNewspaper on 26th November 2023 inviting e-tender for the workwhich was also allotted to the petitioner. This is again in violationof the orders passed by this Court and therefore, the contemptpetition was filed wherein notices have been issued. CommercialAppel No. 1 of 2023 filed by the petitioner before this Courtcame to be dismissed on 8th February 2024. The petitionersubmits that from intervention application filed in his Appeal andon inquiry, the petitioner came to know that the said on-linetenders published, were without any sanction by the HigherAuthorities. Executive Engineer had issued letter to that effect on2nd January 2024. After getting the knowledge about the saidillegal act, the petitioner has immediately filed an applicationwith the respondents with a request to cancel the e-tender wp-2465.245notice. When there is no response, present Writ Petition hasbeen filed. 4.Learned Advocate for the petitioner has taken us throughthe documents including the order passed by the CommercialCourt and the orders and Judgment passed by this Court inCommercial Appeal No. 1 of 2023 and also impugned e-tenderspublished. He points out the letter dated issued by the ExecutiveEngineer stating that permission from the Higher Authoritieshas not been taken. Therefore, learned Advocate submits that itis necessary to stay the entire proceedings of e-tenders and thematter deserves to be admitted.5.Learned AGP for respondent Nos. 1 and 2 and learnedAdvocate Mr. Yadkikar instructed by Advocate for respondentNos. 3 and 4 objects. They submit that the Commercial Suitfiled by the petitioner is pending before the concerned Court.Though the interim relief was prayed, it was then rejected. Thepetitioner preferred Commercial Appeal, which ultimately cameto be dismissed. Even the petitioner approached the Hon’bleSupreme Court but there is no relief in favour of the petitioner.Under the said circumstance, this is another attempt by the wp-2465.246petitioner to get the same relief which has been rejected by thisCourt.6.At the outset, we are taking note of the fact that thepetitioner has already approached, by way of Commercial SuitNo. 1 of 2023, before the competent Court and the said Suit isstill pending. When the interim reliefs were rejected, thepetitioner approached this Court by filing Commercial AppealNo. 1 of 2023 and this Court dismissed the Commercial AppealNo. 1 of 2023 on 8th February 2024. The Hon’ble Supreme Court,in Petition for Special Leave to Appeal (C) No. 5018 of 2024,declined to exercise its jurisdiction under Article 136 of theConstitution of India, by order dated 26th February 2024. Theorder of the Hon’ble Supreme Court further says that, it isclarified that the observations in the impugned order of the HighCourt shall not come in the way of the trial of the suit. Thus, thesituation stands is that it is stated that during the pendency ofthe Appeal, impugned e-tenders were floated, which can still bethe subject matter before the trial Court in the Commercial Suit.We reiterate that originally the reliefs claimed by the petitionerwere different and thereafter the Commercial Suit came to beamended wherein compensation has been prayed. Now, even inthis Petition, the petitioner is not clarifying, as to whether the wp-2465.247petitioner is treating the action taken by respondent Nos. 1and 2 for termination of contract as breach of the terms of thecontract or not. When the Suit is already pending where thesubsequent events can also be agitated, those cannot beentertained by way of a Writ Petition. Whether the act of issuingtenders during the pendency of the proceedings would amountto contempt or not, is the subject matter in the ContemptPetition and therefore, that point cannot be considered here. 7.On inquiry, learned Advocate for the petitioner makes astatement that the petitioner has not taken part in those e-tenders process, which are made subject matter in the WritPetition, now. Under the said circumstance, the petitioner cannothave locus standi to pray for calling the records and proceedingsof those e-tenders and to declare it as null and void, byexercising the powers of this Court under Article 226 of theConstitution of India and therefore, the Writ Petition deserves tobe dismissed at the the threshold.8.The Writ Petition stands dismissed, at the threshold. [S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/MAR24