The District Supply Officer,Dhule, District Dhule..RespondentsMr v. D. Hon, Senior
Legal Reasoning
1 WP-10727-23.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 10727 OF 2023Dhule Hamal Mapadi Kamgar Sahakari Patpedhi Limited, DhuleMarket Yard, DhuleThrough its SecretaryBhagwat Bacchuba ChitalkarAge 44 years, Occu. Labour,R/o. Plot No.39, Maniknagar,Dhule, District Dhule..PetitionerVersus1.The State of MaharashtraThrough the Secretary for Food, Civil Supply and ConsumerProtection Department, Mantralaya, Mumbai2.The Collector, Dhule,District Dhule3.The District Supply Officer,Dhule, District Dhule..RespondentsWITHCIVIL APPLICATION NO.15208 OF 2023 IN WRIT PETITION NO. 10727 OF 2023India Agro Farms Co-operative Society Ltd.,Through its Chairman/Secretary,Devkabai w/o. Nathu Patil, Age 58 years, Occu. LabourR/o. Shop No.25, Khanderao Mandir Road,Shirpur, Tq.Shirpur, District Dhule..ApplicantVersus1.The State of MaharashtraThrough the Secretary for Food, Civil Supply and ConsumerProtection Department, Mantralaya, Mumbai 2 WP-10727-23.odt2.The Collector, Dhule,District Dhule3.The District Supply Officer,Dhule, District Dhule4.Dhule Hamal Mapadi Kamgar Sahakari Patpedhi Limited, DhuleMarket Yard, DhuleThrough its SecretaryBhagwat Bacchuba Chitalkar,Age 44 years, Occu. Labour,R/o. Plot No.39, Maniknagar,Dhule, District Dhule..RespondentsWITHCIVIL APPLICATION NO.11896 OF 2023 IN WRIT PETITION NO. 10727 OF 2023Hamal Mapadi and Malwahatukdar Sahkari Sanstha Maryadit, Shirpur,Through its Chairman/Secretary,Bhavsaheb Rawan Patil (Deore),Age 58 years, Occu. Labour,R/o. Old Bhampur, Post Bhamte,Tq. Shirpur, District DhuleVersus1.The State of MaharashtraThrough the Secretary for Food, Civil Supply and ConsumerProtection Department, Mantralaya, Mumbai2.The Collector, Dhule,District Dhule3.The District Supply Officer,Dhule, District Dhule4.Dhule Hamal Mapadi Kamgar Sahakari Patpedhi Limited, DhuleMarket Yard, DhuleThrough its SecretaryBhagwat Bacchuba Chitalkar,Age 44 years, Occu. Labour,R/o. Plot No.39, Maniknagar,Dhule, District Dhule..Respondents
Legal Reasoning
3 WP-10727-23.odtWITHCIVIL APPLICATION NO.11691 OF 2024 IN WRIT PETITION NO. 10727 OF 2023Mata Vaishnavi Devi Hamal KamgarSahakari Sanstha LimitedAt Chimthane, Tq. Sindhkheda, District DhuleThrough its Chairman/SecretaryGopal s/o. Dilip Mali,Age 30 years, Occu. Business, R/o. At post Chimthane, Tq. Sindhkheda,District Dhule..ApplicantVersus1.Dhule Hamal Mapadi Kamgar Sahakari Patpedhi Limited, DhuleMarket Yard, DhuleThrough its SecretaryBhagwat Bacchuba Chitalkar,Age 44 years, Occu. Labour,R/o. Plot No.39, Maniknagar,Dhule, District Dhule2.The State of MaharashtraThrough the Secretary for Food, Civil Supply and ConsumerProtection Department, Mantralaya, Mumbai 400 0323.The Collector, Dhule,District Dhule4.The District Supply Officer,Dhule, District Dhule..RespondentsMr. V. D. Hon, Senior Advocate instructed by Mr. A. V. Hon, Advocate for Petitioner in W.P.No.10727/2023 and Respondent No.4in CA/15208 and 11896/2023 and Respondent No.1 in CA/11691/ 2024; Mr. Ujjwal S. Patil, Advocate for Applicant in CA/15208/2023Mr. Amol S. Sawant, Advocate for Applicant in CA/11896/2023;Mr. Ajay D. Pawar, Advocate for Applicant in CA/11691/2024; 4 WP-10727-23.odtMr. A. S. Shinde, Additional Government Pleader for Respondents No.1 to 3/State in Writ Petition and CA/15208 and 11896/2023 and Respondent No.2 to 4/State in CA/11691/ 2024WITHWRIT PETITION NO. 8543 OF 2024India Agro Farms Co-operative Society Ltd.,Through its Chairman/Secretary,Nathuthu S/o. Dhoman Patil,Age 72 years, Occu. Labour,R/o. Shop No.25, Khanderao Mandir Road,Shirpur, Tal. Shirpur, District Dhule..PetitionerVersus1.The State of Maharashtra,Through the Secretary for Food, Civil Supply and ConsumerProtection Department,Mantralaya, Mumbai2.The Collector, Dhule,District Dhule3.The District Supply Officer,Dhule, District Dhule4.Mata Vaishnav Devi Hamal Kamgar Co-operativeSociety Ltd., Through its Chairman/Secretary,R/o. Chimthana, Tal. Shindkheda,District Dhule..RespondentsMr. Ujwal, S. Patil, Advocate for Petitioner; Mr. A. S. Shinde, Additional Government Pleader for Respondents No.1 to 3/State;Mr. V. B. Patil, Advocate for Respondent No.4 CORAM : S. G. MEHARE & SHAILESH P. BRAHME, JJ. RESERVED ON : 30-01-2025 PRONOUNCED ON: 12-02-2025 5 WP-10727-23.odtJUDGMENT (PER : S. G. MEHARE, J.) :-1.Rule. Rule made returnable forthwith. Heard finally withconsent of the learned senior counsel for the petitioner, thelearned A.G.P. for the State and the learned counsels for theapplicants.2.The common questions of facts and law are involved in thesepetitions. Therefore, we propose to decide them by common order.3.The petitioner in Writ Petition No.10727 of 2023 seeks writ ofcertiorari to quash and set aside the communication dated02.08.2023, whereby it has been communicated to respondentNo.2/the District Collector, Dhule, by respondent No.1 / theSecretary for Food, Civil Supplies and Consumer ProtectionDepartment that in Government Resolution dated 08.05.2018, ifthe earlier contract is over, that contract may further be given tosame agency. However, Government Resolution dated 06.03.2023was issued and certain provisions have been adopted fromGovernment Resolution dated 08.05.2018. It has been opined thatin both Government Resolutions, there is no provision for allottingcontract to the Patpedhi i.e. credit society. The another prayer inthis writ petition is, issue a writ of mandamus against respondentNo.2/ Collector, Dhule to consider the representation made by thepetitioner, dated 21.06.2023 in view of the Government Resolutiondated 06.03.2023 and for granting extension to the period oftender to the petitioner. He also prayed to direct the respondents 6 WP-10727-23.odtto permit him to participate in the tender process published byrespondent No.2, on 23.08.2023.4.The applicants, in Civil Applications No.11896 and 15208 of2023, were the societies participated in the tender process inquestion. They have raised objections that earlier tender processwas not in consonance with the Government Resolution dated12.09.2014. The earlier tender process was carried as per theGovernment Resolution dated 08.05.2018. Therefore, thepetitioner cannot claim the benefit of extension of tender period.It has also been pleaded that pursuant to the tender notice,technical bid was opened on 20.10.2023 and wrongly decided thatas per order dated 29.08.2023 in this Writ Petition, the tenderprocess was stayed by this Court and further decision has beenstalled. In nut shell, it has been submitted that the petitioner isnot entitled to its extension. The applicants/societies are partiesinterested and the participants in the tender. They are entitled tointervene in the petition.5.By way of another Civil Application No.11896 of 2023, theobjection has been raised that the petitioner is not the societyentitled to tender in past. However, inadvertently the tender wasgranted. The petitioner is not the society as defined under theMaharashtra Co-operative Societies Act, 1960 and Rules, 1961 (forshort, “the Act”). Its a credit society. Therefore, as per the 7 WP-10727-23.odtGovernment Resolution, the tender cannot be extended further. Italso participated in the tender process. As per clause 5 (17) of thebye-laws, the petitioner/society is not entitled to participate in thepresent tender process. Only the registered Hamal Kamgar Co-operative Societies are entitled to participate in the tenderprocess. The earlier tender granted to the petitioner/society wasin contravention of the Government Resolution dated 12.09.2014.The applicant/society prayed that they are the business interested.Hence, entitled to intervene.6.Civil Application No.11691 of 2024 has been filed by theapplicant/society. It is contended that, the petitioner/society whohas been granted ad-hoc tender till the stay order passed in thisCourt is adjudicated on merit. It has not participated in the tenderprocess. However, by way of civil application, it came with a casethat the credit society is not entitled to participate in the tenderprocess. Hence, nothing survive in the petition. If the writ petitionis allowed, the work order issued in its favour would be affected.However, the petitioner/society is not claiming any substantialrelief. It is just opposing the writ petition. It did not specificallyclaim that it deserves continuation of the tender. It is notparticipant in the tender process. The applicant/society is an ad-hoc contractor to meet the requirement. Therefore, we are of theopinion that the applicant/society has no right to intervene.Hence, Civil Application No.11691 of 2024 stands rejected. 8 WP-10727-23.odt7.The applicant/society in Civil Application No.11896 of 2023has also filed independent writ petition No.8543 of 2024. It hascome with a case that the respondent No.2/ the Collector, Dhuleissued notice dated 23.08.2023 inviting tender. It has participatedin the tender process. It was not impleaded as respondent party inwrit petition No.10727 of 2023. It reiterated an opinion of thetechnical re-tender bid and wrong interpretation of order dated29.08.2023. He impugned the ad-hoc tender granted torespondent No.4 by order dated 10.07.2024 and prayed to quashand set aside communication dated 10.07.2024 and also seeksquashment of communication dated 01.02.2024 staying the tenderprocess for allotment of tender. It has prayed for a direction tocomplete the process of tender in question.8.Mr. Hon, learned senior counsel for the petitioner hasvehemently argued that the petitioner was the society registeredunder the Act. The petitioner’s earlier tender for loading andunloading the grains was accepted. The said tender was for threeyears and that period is likely to over. Hence, it applied forextension/continuation of the contract as the petitioner expressedwillingness to continue with the earlier contract as per the terms ofthe Government Resolution. He referred to the GovernmentResolution dated 06.03.2023 and pointed out clause (2) which isabout to the extension of the tender. The further extension wouldbe for three years. He also read clause 12(1) of the said 9 WP-10727-23.odtGovernment Resolution, which states about the priority to be givento the persons named therein. As per the said clause, firstpreference is given to the registered porters’ co-operative society,of which the members are Hamal (porters). Clause 12(2) speaks ofpreference given to the registered unemployed co-operativesociety, if the society under Clause 12(1) is not ready toparticipate in the tender. He would submit that in other districtsthe similarly situated societies have been given extension.Therefore, it is apparent discrimination. The opinion expressedabout kind of the society of the petitioner was explained in detail.However, the authority has incorrectly interpreted the GovernmentResolutions dated 08.05.2018 and 06.03.2023. He also referred tothe bye-laws of the society and submit that the society of thepetitioner holds eligibility to participate in the tender. Though thepetitioner/society was entitled, the extension has not beendeliberately granted and by way of impugned communication, hehas not been held eligible to get contract in question. Therefore,the impugned order deserves to be called back.9.The learned A.G.P. would submit that the jurisdiction of thesociety is restricted to the district only. He would refer toimpugned communication dated 02.08.2023 and argue that it wasin consonance with Government Resolutions dated 08.05.2018 and06.03.2023. The petitioner/society is not the society eligible toparticipate in the tender in question. It is being Patpedhi / credit 10 WP-10727-23.odtsociety, its object is altogether different. It is a commercialsociety. The earlier tender was contrary to the above GovernmentResolution. The communication dated 02.08.2023 is an internalcommunication not affecting the petitioner’s right. Since thesociety of the petitioner is the credit society, it cannot takeadvantage of the orders granting extension to the society grantedby another District Collectors.10.Mr. Sawant, learned counsel for the applicant (one of theparticipants) has vehemently argued that as per Section 8 of theAct read with Rule 4 of 1961 Rules and Clause 13, the petitioner iscredit resource society. He also referred to Rule 8 Clause (1) andRule 10 of the Rules. Section 2(25) of the Act defines “resourcesociety” means a credit society, the object of which is obtaining forits members of credit, goods or services required by them.Referring to the bye-laws of the petitioner/society, particularlyclause 17, he would submit that the petitioner is not the societyeligible to participate in tender and for extension. Thecommunication dated 02.08.2023 has clarified that in theGovernment Resolution dated 06.03.2023 and clauses 12(1) and12(2). It has been clarified, who is entitled to participate in tenderin question. He relied on certain case laws, those will be discussedin the later part.11.The argument of Mr. Patil, learned counsel for the petitioneris supporting to the argument of Mr. Sawant. He has referred to 11 WP-10727-23.odtthe dates of opening the technical bid, issuing of fresh tendernotice. He has serious grievance about keeping the tenderprocess pending under the wrong interpretation of the interimorder passed by this Court.12.So far as Civil Application No.11691 of 2024 is concerned, wehave already expressed taken a need that the applicant/societyhas no right to intervene.13.The case revolves around the eligibility of the petitioner toparticipate in the tender process as well as extension of earliertender. Undisputedly, earlier the tender was given to thepetitioner. The provisions for extension of the tender are specifiedin the Government Resolution dated 06.03.2023. However, by theimpugned communication referring to the clauses 12.1 and 12.2, ithas been opined that in both Government Resolutions, there wasno provision to grant tender to the Patpedhi / credit society. Theterms of eligibility to participate in the tender have been madeknown to all. The petitioner has placed on record the bye-laws ofthe society registered. The title of the society is “Dhule HamalMapadi Kamgar Sahakari Patpedhi Limited, Dhule”. The society ofthe petitioner has been classified as “resource society and creditresource society”.14.Section 2(25) of the Act defines “resource society”. It meansa society, the object of which is obtaining for its members of 12 WP-10727-23.odtcredit, goods or services required by them. Rule (4) speaks aboutapplication for registration and registration fees. The fees fordifferent societies has been prescribed therein. In that Rule,resource society has to pay specified fees.15.Rule 10 further provides classification and sub-classificationof societies. Various societies are classified as per Rule 10. In thatRule, the resource society is sub-classified as credit society. In thatRule, the example of society following the clause or sub-clause hasalso been described. The resource society falls in sub-class, (a)credit resource society, (b) non-credit resource society and (c)service resource society.16.Quoting relevant Sections of the Act and Rules, Mr. Sawant,learned counsel has correctly pointed out that the object of thepetitioner/society is contrary to the above GovernmentResolutions. He has placed on reliance of Jayprakash RaosahebSalunke and others vs. State of Maharashtra and others,2000(3) Mh.L.J. 714. Paragraph No.8 has been referred to. Inthis case, it has been held that the provisions of the bye-laws arenot statutory in nature and they do not have an overriding effecton the provisions of the Rules. Reading the case law, the learnedcounsel for the petitioner/society has raised an objection that thetender cannot be accepted.17.Mr. Sawant, learned counsel for the applicant/society has 13 WP-10727-23.odtreferred to the judgment of The Co-operative Central BankLtd. And others Vs. The Additional Industrial Tribunal,Andhra Pradesh and others, 1969 (2) Supreme Court Cases43. The issue before the Hon’ble Supreme Court was to interpretthe words “the business of the society”, and whether bye-laws ofthe co-operative society have force of law. It has been held thatthe bye-laws may be binding between the persons affected bythem but they do not have the force of statute.18.After having gone through the requisite condition foreligibility to participate in Government Resolutions dated08.05.2018 and 06.03.2023, there is no reason to doubt theeligibility of the petitioner. The material placed on record establishthat it is the resource society which is in category of the creditsociety. The object of granting tender to the Hamal (Porter) is tobe fulfilled by allotting in the contract of loading and unloading offood grains to the societies of which members are Hamal (Porter).It is apparent that earlier tender extended to the petitioner wasdue to wrong interpretation of the Government Resolution. It hasbeen established that the petitioner/society being the resourcesociety/credit society not eligible to participate in the tenderprocess as well as not eligible to seek extension as per the termsof the Government Resolution dated 26.03.2023. We do not findsubstance in the petition.
Decision
14 WP-10727-23.odt19.In view of the above, Writ Petition No.10727 of 2023 standsdismissed. All civil applications are disposed of in above terms. 20.Writ Petition No.8543 of 2024 is pertaining to the ad-hocarrangement made by the Government till the dispute is decidedby this Court and granting ad-hoc contract to respondent No.4.Since the order impugned before this Court was stayed, it was atime gap arrangement to fulfill the object of the tender. No reliefas prayed can be granted in view of the effect of the decision ofWrit Petition No.10727 of 2023. Hence, the writ petition standsdismissed. 21.The respondent No.2 / Collector, Dhule is at liberty toproceed with the tender process, according to law.22.Rule stands discharged. [ SHAILESH P. BRAHME ] [ S. G. MEHARE ] JUDGE JUDGErrd