High Court
Legal Reasoning
WP 7057 24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 7057 OF 2024Nobel Carrying Corporation,A Registered Partnership FirmThrough its Partner namely,Sultan Mohiuddin Abdul Faiz,Age 56 years, Occ. Business,R/o. House No. 1124, National Highway No. 9, Omerga, Tq. Omerga,Dist. Dharashiv.…PetitionerVERSUS1)The State of MaharashtraThrough the Principal Secretary,Food, Civil Supplies andConsumer Protection Department,Mantralaya, Mumbai-32.2)The Collector, Parbhani.3)M/s. Khurana Roadlines,Through its representative,having its office at JawaharRoad, Hingoli, Tq. & Dist.Hingoli.…Respondents…Advocate for Petitioner : Ms. P.S. Talekar, i/b Talekar and AssociatesAddl. G.P. for Respondent nos. 1 & 2 : Mr. A.R. KaleAdvocate for Respondent no. 3 : Mr. S.S. Rathi…WRIT PETITION NO. 7423 OF 2024Shalimar Transport and Carting ConstructionThrough its Sole Proprietor,Shaikh Hameed Shaikh Rahim,Through General Power of Attorney,Shaikh Junaid Shaikh Hameed,Age 42 years, Occ. Business,R/o. Rahemat Nagar, Parbhani.…Petitioner VERSUS1)The State of Maharashtra,1/12
Decision
WP 7057 24.odtThrough the Principal Secretary,Food, Civil Supplies andConsumer Protection Department,Mantralaya, Mumbai-32.2)The Collector,Parbhani.3)M/s. Khurana Roadlines,through its representative,having its office at Jawahar Road, Hingoli,Tq. & Dist. Hingoli.…Respondents…Advocate for Petitioner : Mr. N.E. DeshmukhAddl.G.P. for Respondent nos. 1 & 2 : Mr. A.R. KaleCORAM: MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.RESERVED ON PRONOUNCED ON :: 08.08.2024 14.08.2024JUDGMENT : (MANGESH S. PATIL,J.)These are the writ petitions under Article 226 of the Constitution ofIndia, though preferred by two different petitioners, who are engaged in thebusiness of transportation, they are coming with identical prayers inter aliaimpugning the same communication of respondent no. 1 dated 05.07.2024,addressed to respondent no. 2-Collector Parbhani. Hence both the petitionsare heard together and are being disposed of by this common judgment andorder to avoid repetition of facts. 2.Rule in both the matters. It is made returnable forthwith. 3.The learned A.G.P. waives service for respondent nos. 1 and 2 i.e.Principal Secretary Food, Civil Supplies and Consumer ProtectionDepartment of the State of Maharashtra and Collector, Parbhani,respectively. Learned advocate Mr. Rathi waives service for respondent no. 3in Writ Petition No. 7057/2024, who is none other than the same entity thatis respondent no. 3 in Writ Petition No. 7423/2024 who is also engaged in2/12 WP 7057 24.odtthe business of transportation of goods.4.The petitioners and the respondent no. 3 are carrying on business oftransportation of goods. The petitioner in Writ Petition No. 7057/2024 wasawarded a contract for transportation of food grains and essentialcommodities in Parbhani district. Its contractual period ended in the year2021, but it was granted extensions from time to time.5.A fresh tender was floated for the same work for the period of threeyears by publishing a notice on 26.10.2021. Since the contract was beingawarded to an entity, which was already blacklisted, petitioner NobelCarrying Corporation preferred a writ petition and the further tenderprocess was stalled. The matter was transferred to the Principal Seat. Thepetitioner-Nobel Carrying Corporation was again granted an extensionduring the period of stay.6.On 22.05.2024, the respondent no. 1 by a communication torespondent no. 2-Collector informed not to grant any extension to thepetitioner –Nobel Carrying Corporation. It also directed to request thecontractor from neighbouring Hingoli district to undertake the work oftransportation.7.Petitioner-Nobel Carrying Corporation preferred Writ Petition No.5143/2024 challenging that communication dated 22.05.2024. By the orderdated 28.05.2024, the vacation bench directed not to take any furtherdecision on the basis of this communication dated 22.05.2024 and unlessthe petitioner-Nobel Carrying Corporation was extended an opportunity ofbeing heard and directed further that it shall be allowed to continue thework under contact. 8.Accordingly, the petitioner-Nobel Carrying Corporation approachedrespondent no. 2 with a representation. He forwarded it to respondentno. 1. In turn, respondent no. 1 directed respondent no. 2 to consider and3/12 WP 7057 24.odtdecide the petitioner-Nobel Carrying Corporation’s representations dated24.05.2024 and 28.05.2024. Respondent no. 2 extended an opportunity ofbeing heard and submitted a detailed report on 10.06.2024 (Exh. ‘O’). Heexpressly and candidly informed respondent no. 1 inter alia that thepetitioner-Nobel Carrying Corporation was granted an extension since it wasalready undertaking the work of transportation at a lesser rate. Awardingcontract without inviting competitive bids and without undertaking anyprocess was inconsistent with clause 19.4 of the government resolutiondated 15.01.2021. He also informed that considering the rate being quotedby respondent no. 3 of Rs. 128.80 per quintal it would cause a loss to thepublic exchequer of around Rs. 93 lakh per month. 9.In spite of such communication, by the impugned direction dated05.07.2024, respondent no. 1 informed that the petitioner-Nobel CarryingCorporation had quoted an exorbitant rate in the tender floated as per thegovernment resolution dated 15.01.2021. Since it was not eligible to securethe contract, it stalled the process by filing a writ petition and under interimorder could continue to get the extensions from time to time and furtherobserving that till further orders or till a new contract was entered into,which ever was earlier the Hon’ble Minister had directed Parbhani district tobe annexed to the adjoining district Hingoli for transportation and ifsomeone from Hingoli district was willing to undertake the work he shall beawarded the contract for the time being. This is the communication, whichis under challenge in both these writ petitions. 10. The petitioner-Nobel Carrying Corporation additionally is seeking adeclaration that clause no. 19.2 of the government resolution dated15.01.2021 is violative of Article 14 of the Constitution of India and in thealternative to read it down so as to ensure that the interim arrangement isnot for an indefinite period and soliciting a mandamus directing respondentno. 1 to initiate a fresh tender process.4/12 WP 7057 24.odt11. The petitioner-Shalimar Transport and Carting Construction from WritPetition No. 7423/2024 alleges that since it was also working in Hingolidistrict and was willing to undertake the work even in Parbhani district, hemade a representation dated 08.07.2024 to respondent no. 2-Collectorexpressly referring to clauses 17.2 and 17.3 of the government resolutiondated 20.04.2017 and clause no. 19.2 of the government resolution dated15.01.2021 and its willingness to undertake the work, but therepresentation was not considered and that the petitioner wouldadditionally seek a direction to the respondent no. 1 to take appropriatedecision on its representation and also sought direction to respondent no. 1to undertake a fresh tender process.12. The learned advocate Ms. Talekar for petitioner-Nobel CarryingCorporation would repeat the above stand in the petition and would submitthat everything was going on smoothly till the communication dated22.05.2024, whereby it was decided to terminate the extension granted tothe petitioner abruptly. The stand of respondent no. 1 in the impugnedcommunication attributing the petitioner of creating hurdle in completingthe tender process floated in the year 2021 is fallacious. The contract wasabout to be awarded to an entity, who was L-1, but was already blacklistedand was not eligible to participate, and only on this count that petition wasfiled and the interim order was granted not to issue a work order.Subsequently, on a request by respondent no. 1, the petition was transferredto the Principal Seat and was never circulated by respondent no. 1.Consequently, by virtue of clause 19.2 of the government resolution dated15.01.2021, the petitioner-Nobel Carrying Corporation was grantedextension to undertake the work of transportation at the same rate, whichcontinued from time to time till the latest turmoil. Therefore, the petitionercould not have been blamed for the inability of respondent no. 1 to completethe tender process that was initiated, the tenure of which was three years.13.Ms. Talekar would submit that by this time even that period is over,5/12 WP 7057 24.odtand as has been mentioned in the affidavit in reply filed on behalf ofrespondent nos. 1 and 2, since they are ready to undertake a fresh tenderprocess, the petitioner would not have any objection rather is precisely whatit is praying for.14.Ms. Talekar would further submit that in light of the superveningevents and the stand being taken by respondent nos. 1 and 2 in theiraffidavit in reply, even the petitioner does not press the prayers seekingdeclaration about clause no. 19.2 of the government resolution dated15.01.2021 being violative of Article 14 of the Constitution of India.15.Ms. Talekar would submit that respondent no.2, who is the Collector,had given a candid opinion vide communication dated 10.06.2024 and hadobjectively demonstrated as to how the arrangement of terminating thepetitioner’s extension and awarding the work to respondent no. 3 wouldcause a loss to the public exchequer to the tune of around Rs. 93 lakh permonth. The actions of respondent nos. 1 and 2 potentially causing such ahuge loss to the public exchequer in itself should be sufficient for this Courtto allow both the petitions and direct the respondent no. 1 to forthwithundertake a fresh tender process. No plausible and reasonable explanationis coming forth in the affidavit in reply filed by the respondent nos. 1 and 2as to the estimate of loss opined by respondent no. 2-Collector and nothinghas been mentioned as to why it should be overlooked.16.Lastly, Ms. Talekar would submit that the petitioner has beenundertaking the work of transportation at a lesser rate without there beingany dispute about its competence or performance in doing the same workfor number of years to the satisfaction of the respondent nos. 1 and 2.There was no reason for changing the status quo albeit it was always openfor them to undertake a fresh tender process. She would, therefore, submitthat even if it would take some time to undertake the fresh tender processand consequently petitioner-Nobel Carrying Corporation, by virtue of Clause6/12 WP 7057 24.odtno. 19.2 continues to undertake the work for some time, that would savepublic money.17.Mr. Deshmukh, learned advocate for the petitioner in Writ Petition No.7423/2024, would adopt submissions of Ms. Talekar and would submit thatthe very conduct of respondent nos. 1 and 2 in a straightaway, allowingrespondent no. 3 to undertake the work at an exorbitant rate without callingfor competitive bids, when the transporters like the petitioners are willing toundertake the work, is clearly a highhanded and arbitrary action in view ofclauses no. 17.2 and 17.3 of the government resolution dated 20.4.2017. Itsrepresentation has also not been considered.18.Per contra, the learned Addl. Government Pleader, referring to theaffidavit in reply, would submit that the petitioner-Nobel CarryingCorporation is not coming to the court with clean hands. After completion ofthe contract period, under which it was working till the year 2021, it wasable to get extensions from time to time. It was mischievous in objecting tothe fresh tender process and succeeded in obtaining an interim relief,completely stalling that process. The period for which it was undertakenbeing over, the respondent no. 1 has no reservation and is rather ready toundertake a fresh tender process. He would advert our attention toparagraph no. 19 of the affidavit in reply in this context.19.However, the learned Addl.G.P. would submit that it is the prerogativeof respondent no. 1 as an employer to undertake a tender process. No faultcan be found with his conduct in terminating the extension granted to thepetitioner-Nobel Carrying Corporation. However, since the petitioner-NobelCarrying Corporation was interested in continuing with the work it has beenable to discharge the work for number of years without there being anyformal process of law of floating of tender. He would, therefore, submit thatthe powers under Article 226 of the Constitution of India shall not beexercised in aid of such an unscrupulous litigant.7/12 WP 7057 24.odt20.The learned Addl.G.P. would advert our attention to Clause no. 19 ofthe government resolution dated 15.01.2021 and Clause no. 17 of thegovernment resolution dated 20.04.2017 and would submit that pursuant tosuch stipulation, after expiry of the earlier tender process a fresh tenderprocess could not be concluded and, the respondent no. 3 being atransporter from neighbouring Hingoli District and was willing to undertakethe work, as a stop-gap arrangement the work was directed to be awardedto it. No mala fides are being attributed to respondent no. 1 in either ofthese petitions.21.The learned advocate Mr. Rathi for respondent no. 3 would adopt thearguments of the learned Addl.G.P. and would add that respondent no. 3,being a contractor from adjoining Hingoli district was offered the work andsince it was ready, the impugned communication directs respondent no. 2-Collector to get the work done from respondent no. 3. The work at which hehas been allowed to work is at the same rate as is prevalent in Hingolidistrict. There is no merit in both these petitions.22.We have considered the rival submissions and perused the papers.23.As can be gathered, there is not much of a dispute about the facts.Therefore, one need not repeat those. Admittedly, the tenure of thecontract, which was awarded for a period of three years to the petitioner-Nobel Carrying Corporation had ended in the year 2021 and since thereafterit was allowed to continue the work. Obviously, till a fresh tender processwas undertaken since it was a matter of transportation of essential supplieswithin the district, the work could not have been stopped and the petitioner-Nobel Carrying Corporation was granted extension. Though a fresh tenderwas attempted to be undertaken, the petitioner by filing a writ petition hadobtained stay.24.True it is that the petitioner Nobel Carrying Corporation was unable tosecure the contract under the fresh tender process and, may be under the8/12 WP 7057 24.odtpretext of challenging the tender process whereby the contract was to beallotted to an entity, it was doing so merely on the ground that, that entitywas already blacklisted and still was to get the contract. One cannot findfault with the petitioner-Nobel Carrying Corporation for taking advantage ofthe situation. It could use the circumstance to his advantage and succeededin stalling the process. However, the stand of respondent nos. 1 and 2 andthe submission of the learned Addl.G.P. attributing petitioner Nobel CarryingCorporation as mischievous, to our mind, is rather harsh. If respondent nos.1 and 2 were unable to undertake the tender process with precaution andhad allowed a blacklisted entity to participate, may be on the basis of thepetitioner’s allegations they could have undertaken a fresh scrutiny or couldhave circulated the matter for an early decision, more so when at theirrequest it was transferred to the Principal Seat. Consequently, it was not thepetitioner Nobel Carrying Corporation, who alone was responsible, but evenrespondent no. 1 was responsible for not getting the writ petition decidedearlier or to get the interim relief vacated. It would not, therefore, lie in themouth of respondent no. 1 to attribute petitioner-Nobel CarryingCorporation for the mess.25.Be that as it may, there cannot be a dispute about the fact that thepetitioner- Nobel Carrying Corporation is ingenuously and circuitouslyseeking to get an extension till the time a fresh tender process isundertaken. As it is, the earlier tender process, which could not becompleted, was to be for a period of three years, and by the passage of time,even its tenure by now would be getting over. In such peculiar state ofaffairs, in our considered view, when respondent no. 1 has expressly statedin the affidavit in reply its intention to undertake a fresh tender process, wefind no hesitation in issuing such a direction, albeit the L-1 bidder from thetender process, which could not be taken to the end, is not before us, moreso when even he does not seem to have taken any step for either getting thestay vacated or to get the writ petition which was transferred to the9/12 WP 7057 24.odtPrincipal Seat decided.26.Incidentally, the affidavit in reply filed by respondent nos. 1 and 2does not seek to explain away the candid report of respondent no. 2-Collector dated 10.06.2024. He had precisely pointed out as to howawarding contract at a higher rate, may be by way of a stop gaparrangement, would drain the public exchequer by around Rs. 93 lakh permonth. Even clause no. 19.2 in the government resolution dated15.01.2021 being relied upon by the respondents requires such stop gaparrangement to be undertaken from the transporter of the adjoining district.However, only if it was willing to work at the rate at which the goods werebeing transported in the district for which this arrangement is being made.27.Learned advocate Mr. Rathi for respondent no. 3 would submit thatthe rate contemplated in this clause is the rate at which the contractor in theadjoining district has been undertaking the work and not at the rate of thedistrict for which the work is to be performed. To our mind, this iscomplete misreading of the clause, which is in Marathi. We have no mannerin doubt that this exercise to be undertaken in case of emergency or urgencycontemplated in clause no. 19 of the government resolution dated15.01.2021 expressly permits the work of transportation in a particulardistrict to be allotted to the contractor of a neighbouring district if he iswilling to work at the rate where the work is to be performed, and not atthe rate at which he is undertaking the work in the neighbouring district.This was what the Collector has informed vide his communication dated10.06.2024 and that is why it was being pointed out that such a stop gaparrangement would cost the public exchequer dearly. In spite of this, thedecision was taken to award the contract for the time being to respondentno. 3 at the rate of Rs. 128.80 per quintal when the petitioner NobelCarrying Corporation has been doing it at quite a lesser rate.28.The learned A.G.P. could not give any satisfactory reply to our query10/12 WP 7057 24.odtas to why under Clause 19.2 a contractor from adjoining Hingoli districtalone was preferred, when Parbhani district has its boundaries even withfew other districts like Beed, Nanded and Jalna. We are merely pointing outthis circumstance to demonstrate that though there is enabling provisionunder clause 17.2 of the government resolution dated 20.04.2021 or clause19.2 of government resolution dated 15.01.2021 for making a stop gaparrangement by awarding a contract for the time being to the contractorsfrom the adjoining district, it was imperative, even if the respondent no. 1was not intending to continue with the petitioner-Nobel CarryingCorporation for whatever reason, to have taken some process by offering thework to the contractors from the neighbouring district, expressly callingupon their willingness to work at the rate at which the petitioner-NobelCarrying Corporation was doing it in Parbhani district. The affidavit in replyis conspicuously silent and does not demonstrate as to how respondent no. 3was shortlisted and picked up for awarding the contract, as mentionedherein above, at a rate more than the rate on which petitioner-NobelCarrying Corporation has been doing the work. This circumstance is alsodemonstrative of the arbitrariness in taking the decision to allow the work tobe undertaken by respondent no. 3.29.The impugned communication expressly refers to such directionsbeing given on the instructions of the Hon’ble Minister. This is where the catseems to have come out of the bag. Not only in the impugnedcommunication but even in the affidavit in reply respondent nos. 1 and 2have expressly stated that the impugned decision has been prompted by thedirections of the Hon’ble Minister. We are indicating this to demonstrate thatthe decision under challenge is tainted with arbitrariness and has been takenunder the influence of a minister. 30.In these circumstances, we have no hesitation in quashing and settingaside the impugned communication and directing respondent no. 1 toundertake a fresh tender process.11/12 WP 7057 24.odt31.However, considering the unprecedented situation and as it is amatter of supply of essential commodities within the district, which workcannot be stopped it would be appropriate that the respondent no. 2 isdirected to explore immediately from the petitioner-Nobel CarryingCorporation and also the contractors of the districts adjoining Parbhani theirwillingness to undertake the work as a stop gap arrangement, till the newtender process is taken to the logical end and to award the work to such ofthe willing contractor who is ready to undertake the work at the lowest rate.He shall call for such proposals in a sealed cover and need not resort to anydetail process. 32.Both the writ petitions are allowed. The impugned communicationdated 05.07.2024 is quashed and set aside. Respondent no. 1 shallimmediately undertake a fresh tender process and conclude it asexpeditiously as possible.33.As a stop gap arrangement, respondent no. 1 shall call for thewillingness of the contractors who are already engaged in the districtsadjoining Parbhani district, their willingness to undertake the work for thetime being and the rate at which they are ready to work and award suchwork to it. The petitioner-Nobel Carrying Corporation may also submit itsoffer to respondent no. 2 and even its offer shall be considered. 34.Rule is made absolute in above terms. ( SHAILESH P. BRAHME, J.) (MANGESH S. PATIL, J.)mkd/-12/12