Writ Petition No. 4634 of 2021 · The High Court
Case Details
- 1 - wp4634.21.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4634 OF 2021 Jalgaon District Majoor Kamgar Co-operative Societies Federation Ltd. ‘Shram Sahakar’, Akashwani Chowk Jalgaon 425 001. Through its President Shri Liladhar Sadashiv Tayade Age 65 years, occ. labour Petitioner 1. 2. Versus The State of Maharashtra Through its Principal Secretary Madeame Cama Road, Hutatma Rajguru Chowk Mantralaya Mumbai 400 032. The Exeuctive Engineer Public Works Department, Amalner PWD Offce, Dekusema Road, Amalner, Dist. Jalgaon 425 401 Respondents Mr. V. D. Hon, Senior Counsel instructed by Mr. A. V. Hon, Advocate for the petitioner. Mr. A. R. Kale, AGP for the State. CORAM : SMT. VIBHA KANKANWADI & R. M. JOSHI, JJ. RESERVED ON : 14th OCTOBER, 2022. PRONOUNCED ON : 20th OCTOBER, 2022. - 2 - wp4634.21.odt JUDGMENT : ( PER R. M. JOSHI, J.) 1. 2. 3. Rule. Rule made returnable forthwith. By consent, heard fnally at admission stage. This petition is fled for seeking writ of mandamus directing respondents to implement Clause 4 of Government Resolution dated 23rd July, 2018 and earmark allotment of work to the Labour Co-operative Societies to the extent of 33%, to Educated Unemployed Engineers 33% and to Eligible Registered Contractors 34%. Petitioner has also sought order of quashing impugned E- tender notice bearing No. 17 for 2020-2021 dated 26th February, 2021. 4.
Legal Reasoning
against their interest. Having considered this situation, this Court is of the view that no general directions can be issued for permission for participation of Labour Co-operative Societies in each tender issued by Public Works Department and the same is left to the policy decision of the State. 10. As far as challenge to the present tender is concerned, it - 8 - wp4634.21.odt is the contention of respondents that the work is of urgent nature and, therefore, needs to be allotted to the regular contractors. The tender is restricted to ‘registered contractors’ only. Petitioner-society is not a registered contrator nor any other Labour Society would fall in that defnition. Thus perusal of ‘tender’ would show that it was foated only for one class, thereby banning the entry of other class, which was not contemplated in Government Resolution dated 23rd July, 2018. It is also sought to be contended that Labour Co- operative Societies may not possess required technical ability to fulfll the requirement of work. These contentions, however, are not supported by any decision of the State Government nor such stipulation has been made in Government Resolutions issued from time to time. Moreover, these grounds are presumptive and not supported by any material on record. The act of Public Works Department in allowing only registered contractors to bid for tender is arbitrary, discriminative and unjustifed. 11. In the circumstances, the impugned E-tender Notice No. 17 for 2020-2021 dated 26th February, 2021, is quashed and set aside to the extent of work at Item No. 4, 5, 7, 8, 12, 16, 19 and 20. It is however open for the respondents to re-tender said work by - 9 - wp4634.21.odt permitting all three categories to compete for the said work. Respondents are directed to follow mandate in Government Resolution dated 23rd July, 2018 in letter and spirit henceforth. 12. Pending civil application, if any, does not survive and
Arguments
It is the contention of petitioner that Labour Co-operative Societies are granted several concessions by the State Government and vide Government Resolution dated 30th March, 1978, procedure for providing work to Labour Co-operative Societies is laid down. Said concession was modifed from time to time and by Government Resolution dated 31st March, 2005, the Government earmarked - 3 - wp4634.21.odt allotment of work to the Labour Co-operative Societies to the extent of 33%, Education Unemployed Engineers to the extent of 33% and Eligible Registered Contractors to the extent of 34%. Under Government Resolution dated 23rd July, 2018, allocation of work to the Labour Co-operative Societies under Clause A was extended upto Rs. 30 Lacs and thereafter upto Rs. 1 Crore. According to the petitioner, since respondent No. 2 is not following the provisions of Government Resolution dated 23rd July, 2018, representation is made on 15th June, 2019, for implementation of Government Resolution dated 23rd July, 2018. Thereafter other representations were made on similar line on 30th July, 2019, 18th December, 2020 and 25th February, 2021. It is further contended that those representations were not considered and respondents arbitrarily issued impugned E- tender notice dated 26th February, 2021, which is in violation of the provisions of Government Resolution dated 23rd July, 2018. It is contended that said bid is invited only from Eligible Registered Contractors and hence it is in violation of Government Resolution dated 23rd July, 2018. 5. On behalf of respondents, affdavit-in-reply came to be fled by the Assistant Executive Engineer, Public Works Department, - 4 - wp4634.21.odt Erandol, Dist. Jalgaon. No dispute is made by respondents about applicability of Government Resolution dated 23rd July, 2018 for allotment of 33% of work to Labour Co-operative Societies. It is further contended that the work in question was Flood Damage Repair work which was to be carried out urgently and since, the said work was to be completed within time limit for safety of public transport, tender was issued for the work requiring technically skilled staff and adequate machinery for proper work. It is also contended that such emergency work like Flood Damage Repair is to be carried out by regular contractors and therefore, allotment of such work to Labour Co-operative Societies is not proper. By fling additional affdavit, it is contended that the ratio of allotment of work to aforementioned three different categories is tried to be maintained by the respondents and in this regard statistical data from 3rd May, 2021 to 4th January, 2022 is provided. It is also contended that when the tenders are fouted exclusively for Labour Co-operative Societies and unemployed engineers, then the registered contractors are totally barred from participating in such tender. With these contentions, the present petition is opposed. 6. Learned advocate for petitioner drew attention of the - 5 - wp4634.21.odt Court to the concerned Government Resolutions issued from time to time in respect of allotment of work to the three different categories proportionately. It is pointed out that the tender in question provides for the work for an amount below Rs. 30 Lacs and, therefore, petitioner or other Labour Co-operative Society could not have been barred from participating in the tender process. Since the tender was called only from registered contractors, there is discrimination caused by the respondents which is prejudicial to the interest of the petitioner and alike societies. 7. Learned AGP submitted that from the statistical information placed on record, it is clear that proportionate distribution of work is apparent and, therefore, there is no case made out by the petitioner for issuance of any directions or for quashing the tender in question. It is submitted that it is the discretion of the department in order to assess the ability of the contractors to perform a particular nature of work and therefore, such discretion cannot be challenged. It is also argued that work below Rs. 30 Lacs is allotted to the Labour Co-operative Societies by specifc tender wherein only such societies are eligible and, therefore, present petition cannot sustain. It is also submitted that the Government - 6 - wp4634.21.odt Resolution in question only speaks about enhancement of limit of the work to be allotted to Labour Co-operative Societies and that it does not create right in favour of such societies to get proportionate work in each tender as 33% of the work can be allotted during the entire fnancial year. In support of his contentions, he placed reliance on judgments in the matter of Michigan Rubber (India) Ltd. vs. State of Karnataka & others reported in 2012 AIR (S) 2015, Rajasthan State Industrial Development and others vs. Diamond and Gem Development Corporation Ltd and others reported in 2013 AIR (SC) 1241 and N. G. Projects Limited vs. Vinod Kumar Jain and others reported in 2022 AIR (SC) 1531 and submitted that the Court is normally not expected to interfere with the policy decision when the matters pertain to awarding of contract by State authorities. 8. No dispute is made by the respondents about applicability of Government Resolution dated 23rd July, 2018 whereby Labour Co-operative Societies are entitled to get 33% of work upto the value of Rs. 30 Lac. The point of dispute sought to be made across the bar is as to whether petitioner would be entitled to participate in each tender for the work of value of less than Rs. 30 Lacs or the ratio of 33% is to be maintained for the entire work done by the - 7 - wp4634.21.odt department in every fnancial year. Nothing is placed on record to show that any such policy has been framed by the State Government for allotment of 33% tenderwise or yearwise. This certainly would be a matter of policy of the State. 9. Apart from this, there would be one more issue likely to arise if contention of petitioner is accepted for their participation in each tender such as if Labour Co-operative Societies are allowed to participate in each tender then in that case, registered contractors also will have to be allowed to participate in the tenders specifcally issued for the category of work to be allotted to the Labour Co- operative Societies. In such situation Labour Co-operative Societies may not be in a position to compete in terms of technical knowhow as well as price quotation with regular contractors and which would be
Decision
stands disposed of. 13. Rule made absolute in above terms. ( R. M. JOSHI ) Judge dyb ( SMT. VIBHA KANKANWADI ) Judge