High Court
Legal Reasoning
Writ Petition No.11186/2024 with 11725/2024 &11729/2024:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.11186 OF 2024Bhushan Electricals, through its Proprietor Kavita Bhushan Tayde… PETITIONERVERSUSThe State of Maharashtra & ors.… RESPONDENTS.......Mr. K.B. Borde, Advocate for petitioner Mr. A.S. Shinde, A.G.P. for State Mr. S.R. Dheple, Advocate for R.No.2 and 3Mr. Vinod P. Patil, Advocate for R.No.4....…WITHWRIT PETITION NO.11725 OF 2024Bhushan Electricals, through its Proprietor Kavita Bhushan Tayde… PETITIONERVERSUSThe State of Maharashtra & ors.… RESPONDENTS.......Mr. K.B. Borde, Advocate for petitioner Mr. A.S. Shinde, A.G.P. for State Mr. V.V. Gujar, Advocate for R.No.2 and 3Mr. D.A. Madke, Advocate for R.No.4....…
Legal Reasoning
Writ Petition No.11186/2024 with 11725/2024 &11729/2024:: 2 ::WITHWRIT PETITION NO.11729 OF 2024Bhushan Electricals, through its Proprietor Kavita Bhushan Tayde… PETITIONERVERSUSThe State of Maharashtra & ors.… RESPONDENTS.......Mr. K.B. Borde, Advocate for petitioner Mr. A.S. Shinde, A.G.P. for State Mr. V.V. Gujar, Advocate for R.No.2 and 3Mr. D.A. Madke, Advocate for R.No.4....… CORAM : R.G. AVACHAT ANDSANDIPKUMAR C. MORE, JJ.DATE : 22nd APRIL, 2025O R D E R :Heard. All these three Writ Petitions are taken uptogether for decision since common question of facts and lawarise therein. 2.The subject matter of these Writ Petitions are thetender processes for the work of electrification of PrimaryHealth Centres under Zilla Parishad, Jalgaon. Writ Petition No.11186/2024 with 11725/2024 &11729/2024:: 3 ::3.The petitioner, a sole proprietary firm, participatedin the tender process. The petitioner firm’s bids were rejectedat technical bid level. The present petitions have, therefore,been filed.4.Learned counsel for the petitioner would submitthat, in the eye of law, husband and wife are different entities.The firm has been registered way back in 1992. The mother-in-law of the petitioner was the original proprietor of the firm.On her demise, her daughter-in-law became proprietor of thefirm. She married Bhushan Tayade in the year 2006 andthereafter Bhushan Tayde was appointed in Zilla Parishad. Hewas then transferred to Jalgaon Headquarters and appointedwith the Works Department of Zilla Parishad.5.The learned Advocate would further submit that, ifthe orders impugned herein are upheld, it would tantamount tocivil death of the proprietor of the petitioner firm. She would beperpetually debarred from participating in the tender process.He would further submit that, the authorities concerned shouldnot have succumbed to the complaint made by a stranger, who Writ Petition No.11186/2024 with 11725/2024 &11729/2024:: 4 ::was not participant in the tender process. Adverting ourattention to certain documents relied on by the contestingrespondents, he would submit, the document at Page No.246was in the nature of a document bearing her mother-in-law’selectronic signature. The cell phone originally belonged to hermother-in-law. On her demise, the cell phone is being used bythe husband. Since then, the petitioner- wife scored out thecell phone number from the letter head. He would furthersubmit that, not a single SMS was made to any of theauthorities related to the tender work from the said cell phone.Everything was through electronic mode and that too, E-mail.Email ID has been referred to in that regard with OTP. Hewould further submit that, before the impugned order waspassed, the petitioner was not given notice. 6. The learned counsel has relied on the Apex Courtjudgment in case of Tarsem Singh Vs. Bharat SancharNigam Ltd. etc. [AIR 2004 P & H 156 ] and specificallyadverted our attention to the observations :-“The aforesaid judgment of the Division Bench hasassumed finality as we are told, the respondents did not Writ Petition No.11186/2024 with 11725/2024 &11729/2024:: 5 ::file any appeal against this judgment in the SupremeCourt. Apart from the aforesaid judgment havingassumed finality and the declaration of law madetherein, which has binding effect upon the respondents,we once again take this opportunity of reiterating thatindeed a prospective tenderer cannot be barred at thevery threshold from participation in a tenderingprocess, if he is otherwise fully eligible on all counts,merely on the ground that someone or the other relatedto him is employed in one capacity or the other in aparticular BSNL Unit, which had called the tenders.Disqualifying or barring of such prospective tendererper se only on this ground, in our considered opinion, isa highly arbitrary act, without there being any nexuswith the object sought to be achieved. . . . . . . . . . . . . . .As each case would depend on its own merits, suchcase can be dealt with properly, but right from thethreshold barring a prospective tender only on theground of his relative being employed would bepatently in violation of Article 14 of the Constitution ofIndia, the same being a wholly arbitrary exercise ofadministrative power." 7.It was submitted by Mr. Vinod Patil, learnedcounsel appearing for respondent No.4 in Writ PetitionNo.11186/2024 that, the tender work has now been completed.Photographs to that effect have been produced on record. Thisfact is disputed/ denied by learned counsel for the petitioner.The respondent No.4 was a successful bidder. Due topendency of these petitions, the contract price due to him hasnot been paid. Writ Petition No.11186/2024 with 11725/2024 &11729/2024:: 6 ::8.It was submitted by learned counsel for therespondent Zilla Parishad that the work orders to these worksare issued subject to the outcome of the decision of these WritPetitions. We are conscious of the fact that the complaintmade by a stranger without any supporting material should beshown a dust bin, but in the recent past, we have come acrosscertain instances whereat the whistle blowers are doing theirjob in right perspective, whereby truth and illegalities areunearthed. The present case would also be a glaring examplethereof. The husband of the proprietor of the petitioner firmjoined service with the very Zilla Parishad as Engineer in theyear 2016. It is informed that, since his appointment, almostall the works of the Works Department have been bagged inthe name of the petitioner. This speaks in volumes. This fact isalso disputed/ denied by learned counsel for the petitioner. Rule 14 of the Zilla Parishad District Services(Conduct) Rules, 1967 reads thus :“14.Private trade or employment:-(1)No Parishad servant shall except with theprevious sanction of the Chief Executive Officer Writ Petition No.11186/2024 with 11725/2024 &11729/2024:: 7 ::engage, directly or indirectly, in any trade or businessor undertake any employment :Provided that, a Parishad servant may, without suchsanction, undertake honorary work of a social orcharitable nature or occasional work of literary, artisticor scientific character, subject to the condition that hisofficial duties do not thereby suffer and that hediscontinues such work if so directed by the ChiefExecutive Officer.Explanation :- Canvassing by a Parishad servant insupport of the business of insurance agency orcommission agency, owned or managed by anymember of his family shall be deemed to be hisengaging in trade or business within the meaning ofthis sub-rule.” 9.It is true that, the petitioner’s husband to have notdirectly been involved in the bidding process nor has heinfluenced anyone. The employee is also barred to participatein the tender process indirectly as well. Document at page246 is the bid submission confirmation submitted by thepetitioner, wherein the cell phone number of her husband (theemployee with the Zilla Parishad) has been given. Moreover,there is another document under the signature of DistrictCollector, appointing the petitioner’s husband on election duty,wherein his cell phone number is one and the same. Writ Petition No.11186/2024 with 11725/2024 &11729/2024:: 8 ::10.We are conscious of the legal position that, in law,the husband and wife are treated two distinct entities. Thematerial on record, however, indicates that, for long thepetitioner’s firm has bagged number of contracts. Thepetitioner’s husband having been serving with the veryDepartment, could be said to have played some indirect role.The documents on record vouch for the same. We refrainourselves from making further observations with a view toavoid them in coming in the way of the petitioner’s firm in itsbusiness. 11.We have one another strong reason to dismiss thepetition, since the work contract has already been completed.The same has been stated by the concerned Advocates.Photographs have also been placed on record. In this factualscenario, we find that, no writ under Article 226 of theConstitution of India need be issued in favour of the petitioner.The petitions thus stand dismissed. (SANDIPKUMAR C. MORE, J.) (R.G. AVACHAT, J.)fmp/-