High Court
Facts
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.11597 OF 2023Bhupendra Govindrao Jadhav,Age 48 yrs., Occ. Agri. & Business,R/o Maindane, Tq. Sakri,Dist. Dhule. … Petitioner… Versus …1The State of Maharashtra,Through its Secretary,Department of Planning,Mantralaya, Mumbai – 32. 2The Secretary,Public Works Department,Mantralaya, Mumbai. 3Chief Engineer,Public Works Region, Nashik,Dist. Nashik. 4Superintendent Engineer,Public Works Circle,Dhule. 5Executive Engineer,Public Works (North) Division,Dhule. … Respondents...Mr. S.S. Deshmukh, Advocate for petitionerMr. V.M. Jaware, AGP for respondent Nos.1 to 5 2WP_11597_2023_Jd...CORAM :SMT. VIBHA KANKANWADI &S.G. CHAPALGAONKAR, JJ.RESERVED ON :08th FEBRUARY, 2024PRONOUNCED ON :28th FEBRUARY, 2024JUDGMENT :(PER : SMT. VIBHA KANKANWADI, J.)1Rule. Rule made returnable forthwith. Heard learned Advocatesfor the parties finally, by consent. 2Present petition has been filed for following reliefs :“A)By issuance of the writ of mandamus or writ or orders in thelike nature it be directed to the respondent authorities to decide theobjection raised by the petitioner on 04.09.2023 viz-a-vis dated07.09.2023 forthwith; and for that purpose issue necessary directions.B)By issuance of writ of mandamus or writ or order in the likenature it be directed to the respondent authorities to act inconformity with the State Scheduled Rates in relation to hilly areasthereby increase of 10% of Basic Rates is made applicable in relationto E-tender works bearing No.17, 18 and 22 (Exh.D) forthwith; andfor that purpose issue necessary directions.”3The facts giving rise to the petition are that the petitioner has 3WP_11597_2023_Jdparticipated in relation to the Short Period E-tender notice bearing E-tendernotice Nos.17, 18 and 22. However, the authorities have made departurewith the mandate of Rate Analysis in the process of determining theApproximate value of works without undertaking the rate analysis andaddition of 10% on basic rate as is contemplated in State Scheduled Rates(SSR). The petitioner states that the Government Resolution dated18.01.2010 has issued various directions in respect of Hilly AreaDevelopment Programme in identified Hilly Areas. It includes the TahsilShirpur and Sakri of revenue district Dhule. The entire cluster of these twotahsils are included in hilly areas as per the said resolution. SSR was madeapplicable to the areas such as Corporate areas, Municipal Council areas,Sugarcane Factory areas, notified areas, hilly areas as indicated. Afternotification under those categories an increase by 10% in rates upon rateanalysis was the consequence. The instructions indicated that it is for theSuperintending Engineer to decide the necessary increase in the percentagein rate corresponding to the specific area. The instructions have been issuedby corrigendum dated 30.11.2019, wherein it is stated that the approvedinstructions by the competent authorities are to be implemented. Objectionwas raised by the petitioner. The respondent authority put forth theclarification as notice inviting tender. The corrigendum dated 30.11.2019obligates to comply with the instructions approved by the authorities, if 4WP_11597_2023_Jdrequired may be by postponing the tender process. The petitioner had raisedthe said objection in pre-tender conference on 04.09.2023 and on 07.09.2023a comprehensive objection was raised. The tendering authority, however, isadamant in not to interpret the condition of SSR as a tender condition, butreiterates the departure by them from the Government Resolution. Hence,the petition. 4Initially affidavit-in-reply was filed by one Sandeep BhausahebPandagale, working as Executive Engineer, Public Works (North) Division,Dhule, Dist. Dhule, wherein objection has been raised in respect of locusstandi of the petitioner to file the petition. Tender notice Nos.17, 18 and 22pertaining to Tq. Shirpur, Dist. Dhule, which is having 60% of area as tribaland 40% as non tribal. In order to consider the area to be hilly, thegeographical slope of terrain shall be more than 30%. When thegeographical slope is between 17% to 30%, then such area shall be treated aspartially hilly area. Geographical slope of the taluka Shirpur is totally plain.Estimate of works in tribal areas is already having 10% additional rates asper the norms specified in SSR, however, the petitioner wants 10% additionalrate to be considered while preparing the estimate in non tribal but notifiedhilly areas as per Government Resolution dated 18.01.2010 issued by thePlanning Department. The said resolution on which the petitioner intends to 5WP_11597_2023_Jdrely is issued by Planning Department and applicable to Hilly AreaDevelopment Programme. It is said that the works under construction wasundertaken and rates quoted by L-1 have been given. Offers have beenreceived from the bidders and it would show that all the bidders for thoseworks non tribal but notified hilly area is less than the estimated rates. Theyhave not found any ambiguity. 5By way of re-joinder the petitioner has reiterated the samecontentions. 6Further, it appears that on the directions issued by this Court,Sandeep Bhausaheb Pandagale, the Executive Engineer, Public Works (North)Division, Dhule, has filed reply and he explains as to how the hilly area cameto be notified. He also submits that if we do not consider the 10% additionalamount, the Public Works Department would be executed 10 % more workwhich ultimately benefits the common public at large. The said policy isbeing continued since last 13 years. 7It will not be out of place to mention here that after the matterwas heard on 04.01.2024, need was felt to have additional affidavit on behalfof respondent Nos.2 to 5, which was directed to be by a responsible higherauthority. Thereupon, Prashant Shantirappa Auti, Chief Engineer, Public 6WP_11597_2023_JdWorks Region, Nashik has filed additional affidavit, who tries to interpret theGovernment Resolution dated 25.07.2022, in his own way. 8Heard learned Advocate Mr. S.S. Deshmukh for the petitionerand learned AGP Mr. V.M. Jaware for respondent Nos.1 to 5. In order to cutshort, it can be said that they have argued in support of their respectivecontentions. 9It is not in dispute that Planning Department of Government ofMaharashtra issued various resolutions which appear to be in respect ofdevelopment in hilly areas, directions or guidelines for the works to be doneunder the said programme. Though the Government Resolutions appear tobe from 03.10.1988, since E-tender was issued in 2023, it is the saidGovernment Resolution within that period. The background or preamble ofsaid Government Resolution specifically mentions that it is the policy of theState Government to have development of all the areas in the State. It washighlighted that the needs of the hill development is different and acommittee was appointed by the Government to set out guidelines. As persaid Government Resolution, village Sakri and Shirpur from Dhule district areincluded in hilly area. Further, as regards State Scheduled Rates areconcerned, important issues have been jot down, wherein for the rates in 7WP_11597_2023_JdCorporation areas, Municipal Council areas, notified tribal areas includinghilly inaccessible areas an increase of percentage over the normal schedule ofrates prescribed for the year 2022-23 were given and for hilly area thepercentage in rates is quoted as 10%. The Note states Issue rates of Schedule‘A’ materials for the notified area shall be increased by respective percentage.The above percentage shall be applied on the cost of those after deductingthe cost of specified materials, if issued on Schedule ‘A’. The notified hilly/inaccessible areas should be considered as per Government Resolution,Planning Department and applicable Government Resolutions of PlanningDepartment vide Superintending Engineer, Public Works Department specifiesthe Sugar factory areas/Coal mine areas/notified tribal under their circles.However, this SSR states that for all districts excluding Gadchiroli the workswhich are pertaining to inside premises of Central Jail, Mental Hospital,Yerwada Printing Press as well as in Corporation area. an increase ofpercentage over normal scheduled rates shall be considered bothsimultaneously e.g. if Central Jail is situated in Corporation area an increaseof 5% for corporation area and 15% of jail premises, total 20% shall beconsidered. Thus, the directions issued were specific; yet, it appears thatwhile publishing the E-tender the Public Works Department, Division Dhulehas not considered the Government Resolution. Now, respondent No.4 iscoming with a case that they relied on the Circular issued by the Public Works 8WP_11597_2023_JdDepartment on 25.07.2022, wherein as regards the rates are concerned, theExecutive Engineer was the proper person to take call as to what should bethe rates. Guidelines were given to him to assess the same. The respondentsalso rely on the Maharashtra Public Works Manual. However, it is hard tobelieve that the Government Resolution issued by Planning Department willnot be binding on the Public Works Department. The definition for hilly areaor the criteria to consider a place/town, city in the particular category woulddiffer from Department to Department. The said resolution dated18.01.2010 does not say that it is not applicable to the other Departments,nor the respondents have placed on record any such resolution stating thatthe resolutions of other Departments are not binding on the Public WorksDepartment. In fact, Planning Department is the main department which willtake into consideration the various schemes/plan for the same and then thatwould be implemented through the respective departments. Here, we aremainly concerned with the directions issued under the Hilly AreaDevelopment Programme. When the objection is said to have been taken bythe petitioner in pre-tender conference on 04.09.2023 and thencomprehensive objection was taken in writing on 07.09.2023, respondentNo.4 appears to have not taken care to answer the said objection. In thegeneral notes for SSR, in fact, it is said that the Government Resolution of thePlanning Department should be considered by the Superintending Engineers,
Legal Reasoning
10WP_11597_2023_Jdmade applicable. 11Here, it appears that the things have not moved further. Tenderopening process for the works under consideration was carried out and bythis time the work would have been allotted by issuing orders. It will not bethen appropriate to undo the entire process. It will not be now possible tomake those rates applicable in relation to E-tender works bearing Nos.17, 18and 22. Another fact also to be noted is that many works were floatedthrough the said E-tender process and out of those the petitioner hadparticipated only in three works. It would be injustice to the otherparticipants/bidders if respondent authorities are directed to re-float thetender. Petitioner will be having alternative efficacious remedy, in view of theobservations by Hon’ble Supreme Court in M/s. N.G. Projects Limited vs.M/s. Vinod Kumar Jain and others [2022 LiveLaw (SC) 302], which was thenrelied by this Court in M/s. Pharmaveda (I) Private Limited vs. ChiefExecutive Officer, Zilla Parishad, Nandurbar in Writ Petition No.14938 of2023 decided by this Court on 18.01.2024. In M/s. N.G. Projects Limited(supra) it has been held that - “23.In view of the above judgments of this Court, the Writ Courtshould refrain itself from imposing its decision over the decision ofthe employer as to whether or not to accept the bid of a tenderer. The 11WP_11597_2023_JdCourt does not have the expertise to examine the terms andconditions of the present-day economic activities of the State and thislimitation should be kept in view. Courts should be even morereluctant in interfering with contracts involving technical issues asthere is a requirement of the necessary expertise to adjudicate uponsuch issues. The approach of the Court should be not to find faultwith magnifying glass in its hands, rather the Court should examineas to whether the decision-making process is after complying with theprocedure contemplated by the tender conditions. If the Court findsthat there is total arbitrariness or that the tender has been granted ina mala fide manner, still the Court should refrain from interfering inthe grant of tender but instead relegate the parties to seek damagesfor the wrongful exclusion rather than to injunct the execution of thecontract. The injunction or interference in the tender leads toadditional costs on the State and is also against public interest.Therefore, the State and its citizens suffer twice, firstly by payingescalation costs and secondly, by being deprived of the infrastructurefor which the present-day Governments are expected to work.”Therefore, we allow the writ petition partly. Hence, followingorder. ORDER1The writ petition stands partly allowed. 2The respondent authorities are directed to act in conformity withthe State Scheduled Rates in relation to hilly areas in view of Government 12WP_11597_2023_JdResolution dated 18.01.2010, henceforth. 3Rest of the prayers stand rejected. 4No order as to costs. 5Rule is made absolute in the above terms. (S.G. CHAPALGAONKAR, J.)( SMT. VIBHA KANKANWADI, J. )agd
Arguments
9WP_11597_2023_JdPublic Works Department and this has been so accepted in paragraph No.5 ofthe affidavit filed by Mr. Sandeep Bhausaheb Pandagale, the ExecutiveEngineer. Further explanation would then cannot be considered. He acceptsthat though the entire Shirpur taluka is notified hilly area, but then says thatit is non tribal but notified hilly area having less than 17% geographicalgradient. He puts forth that if we read the said provision in true context,then additional 10% rates are not required to be considered. Here, he cannotfurther supplement and take a different stand against the GovernmentResolution. 10Even after giving an opportunity that some higher official shouldfile the affidavit, who is empowered to take a policy decision, the affidavit ofChief Engineer has been filed. Government Circular of the Public WorksDepartment will not override the Government Resolution. The supplement tothe Government Resolution cannot be by way of a circular. The GovernmentResolution is the outcome of the decision taken by the Government i.e. by theMinistry or Ministers as such. But then circular giving power or jurisdictionto Superintending Engineer will not then supersede the decisions those havebeen taken at the highest level in the Government and, therefore, respondentauthorities should act in conformity with the State Scheduled Rates inrelation to hilly areas thereby increase of 10% of the basic rates should be