High Court
Legal Reasoning
1 903-WP-13841,13834-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 13841 OF 2024ANDWRIT PETITION NO. 13834 OF 2024M/S SHREE OMKAR CONSTRUCTION THORUGH IS PROPRIETORDADARAO SHAHUJI DHAGEVERSUSTHE STATE OF MAHARASHTRA THROUGH ITS PRINCIPAL SECRETARYAND OTHERS...Advocate for the Petitioner : Mr. D. S. BagulAGP for Respondents/State : Mr. P. S. PatilAdvocate for Respondents No.3 and 4 : Mr. G. K. Naik Thigale… CORAM : S. G. MEHARE & SHAILESH P. BRAHME, JJ. DATE : 30-01-2025PER COURT:-1.Heard both sides finally.2.The common questions of facts and law are involved in thesepetitions. Therefore, we propose to decide these petitions bycommon order.3.Initially, Mr. Thigale, learned counsel for respondents No.3and 4 sought time in these matters. Considering urgency in thematters and in view of the previous orders, we declined therequest. He tendered on record a chart showing the status andthe proposed action in the present matters along with otherpetitions which are on board today. 2 903-WP-13841,13834-24.odt4.The grievance of the petitioner is that though the petitionerwas selected in tender process being successful bidder, therespondents/authorities didn’t issue the work orders.5.The learned counsel for the petitioner submits that theselection was done on 27.12.2023, but till this date, no work orderhas been issued. He also points out that the first informationreport bearing CR No.403 of 2023 as well as sequence of events tomake out a case that the respondents are deliberately dodging theprocess and not issuing the work order. He also tenders on recordthe order dated 10.07.2024 passed in Writ Petition No.2432 of2024.6.Mr. Thigale, learned counsel for respondents No.3 and 4would point out that he has written instructions to issue the workorder in the present petition, subject to : (a) section (II)(1) of thetender document, (b) decision of the proposal dated 16.01.2025pending before the Government for black listing, and (c) FirstInformation Report bearing C.R.No.338 of 2024 for the offencespunishable under Sections 420, 464, 467, 468 and 471 of theIndian Penal Code. He would further submit that the subject toabove contingencies, the authorities are ready to take furtherdecision within seven days. 7.He would also point out that Section No.111 of the tenderdocument pertaining to disqualification from tender process and 3 903-WP-13841,13834-24.odtexclusion from future contracts. He would advert our attention toparagraph (9) of the interim order dated 10.07.2024 in writpetition No.2423 of 2022.8.Though the learned counsel for respondents No.3 and 4 hassubmitted that the authorities are ready to take decision albeitsubject to the contingencies stated above, we have reservationsfor permitting them to resort to such action. It is necessary topoint out certain relevant sequence of events occurred in thesetwo petitions. 9.In these matters, tender process was initiated on26.08.2023. It was completed in the month of December 2023.The petitioner was declared to be successful bidder andcommunication to that effect was issued on 27.12.2023 by therespondent/ the Chief Engineer. The proprietor of the petitionerlodged First Information Report bearing C.R. No.403 of 2023 withBhagya Nagar Police Station, District Nanded, againstSuperintending Engineer and another, for the offences punishableunder Sections 12 and 7 of the Prevention of Corruption Act, 1988.10.Thereafter, proprietor of the petitioner was implicated in firstinformation report bearing C.R.No.0338 of 2024 registered withShivaji Nagar Police Station, Nanded, on 20.08.2024. It is pertinentto note that the offence was pertaining to the work done by thepetitioner in 2023. The allegations were levelled that couple of
Decision
4 903-WP-13841,13834-24.odtforged documents were submitted by him. The petitioner hadcompleted the said work in 2023 itself. Thereafter, it participatedin many tender processes alongwith other bidders. The authoritiesdidn’t open bids or issue work order to it wherein it participated.As against this, wherever it did not participate, the process wasconcluded and the work orders were also issued.11.The petitioner was required to approach this Court by filingWrit Petition No.3098 of 2024. The learned A.G.P. on instructionsof Executive Engineer, Public Works Department, Nanded, made astatement that the tender would be opened by the end of thatparticular month. In view of that, by the order dated 26.03.2024,the writ petition was disposed of.12.It is relevant to mention that the proceeding of black listingwas taken up against the petitioner vide order dated 21.06.2024.The petitioner had already filed Writ Petition No.2432 of 2024 andby way of civil application, he was permitted to amend the petitionand permitted to challenge the order of black listing. By interimorder dated 10.07.2024, the order of black listing was stayed andfollowing observations were made in paragraph No.9;“9. In view of the above, by way of an ad interim relief,we are staying the operation of the impugned order,dated 21/06/2024. The Respondents are at liberty tofile an additional affidavit-in-reply in the light of theamendment allowed by this Court. So also, if the 5 903-WP-13841,13834-24.odtconcerned Respondents desire to withdraw theimpugned order and follow the law laid down in M/s.Erusian Equipment and Chemicals Ltd (supra) andState Bank of India and others Vs. RajeshAgarwal and others (supra), they are at liberty.”13.In pursuance of the order dated 26.03.2024, the tendersopened and the petitioner was technically disqualified due toproposal of black listing. Being aggrieved, petitioner was requiredto file petitions, namely, W.P.No.3848 of 2024, W.P.No.3090 of 2024and W.P.No.3907 of 2024. Those petitions were partly allowed byorder dated 16.07.2024, by quashing the impugned orders.14.It is informed that despite the decision, the respondentsauthorities did not open the tender and the petitioner was requiredto file Contempt Petition No.1 of 2025 against the authorities andthe contempt is still pending.15.The present tender process should have been concluded inthe month of December 2023. The petitioner has filed complaintagainst the Superintending Engineer for the offences punishableunder Sections 7 and 12 of the Prevention of Corruption Act, 1988.The proprietor of petitioner was roped in C.R.No.0338 of 2024registered on 20.08.2024 on the basis of some alleged forgeddocuments of work completed in 2023. Despite the order of theCourt, no compliance was made and the petitioner was required 6 903-WP-13841,13834-24.odtto file a contempt proceedings. The sequence of the eventsdiscussed above reflects the conduct and vindictive approach ofthe respondents/authorities. 16.We are constrained to observe that earlier order of blacklisting dated 21.06.2024 has not been withdrawn till this date,despite the liberty granted by the Co-ordinate Bench. When thesaid order is in subsistence, the respondents/authorities haveresorted to further action of black listing. It is represented that theproposal of black listing dated 16.01.2024 is submitted torespondent No.1 and it is pending.17.It is apparent that the conduct of respondents is malicious.The proposal submitted on 16.01.2025 is after-thought and it isclearly designed to eliminate the petitioner from the tenderprocess. We are constrained to observe that every attempt hasbeen made to eliminate the petitioner from the tender process justto settle the personal scores. We have our reservations for theprocess of black listing initiated against the petitioner for whichthe proposal dated 16.01.2025 is pending with respondent No.1.18.We would have accepted the submission of Mr. Thigale,learned counsel but after more than one year the respondents arecoming with a plea that the proposal of black listing is pending andsubject to that decision the work order would be issued. These aredilatory tactics of respondents which is unbecoming of. 7 903-WP-13841,13834-24.odt19.The offence bearing C.R.No.338 of 2023 has been registeredon 20.08.2024, after registration of offence bearing C.R.No.403 of2023 by Proprietor of the petitioner. The proposal of therespondents/authorities that the further decision would be takensubject to C.R.No.338 of 2024 is also not acceptable. It is againvindictive approach. We are, therefore, not inclined to accept theproposal which is tendered today by the learned counsel for therespondents/authorities.20.Considering the sequence referred above, we expressdispleasure against the respondents and the manner in which thetender process has been meddled with. Even we do not hesitateto observe that the respondents/ authorities have no regards tothe order of the Court. They have audacity to misuse the processof the law. In that view of the matter, we pass the following order:-ORDER(i)The writ petitions are allowed in terms of prayer clause ‘B’.(ii)The respondents/authorities shall forthwith issue the work orders to the petitioner. [ SHAILESH P. BRAHME ] [ S. G. MEHARE ] JUDGE JUDGErrd