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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.19 OF 1998
Shasakiya Karmachari Sanghatana
Regd. No. 2140/79, Parwana Bhavan
Station Road, Nagpur through
its President Camp, Amravati ......... .. PETITIONER
// VERSUS //
1 State of Maharashtra
through its Secretary Public Works
Department, Mantralaya, Mumbai 32
2 Nitin Jairamji Gadkari,
Minister for Public Works Department,
Gadkari Wada, Mahal, Nagpur
3 Deodatta Marathe,
Chief Engineer, Public Works Department,
Nagpur Region, Civil Line, Nagpur
4 Sudhakar Tekade,
Superintending Engineer,
Public Works Department,
Nagpur Circle, Old Secretariat Building,
Civil Lines, Nagpur - 1
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5 Vivek Ghanekar,
Executive Engineer,
Public Works Department,
Divi. No.1,Residency Road,
Sadar, Nagpur ..... RESPONDENTS
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Mr.P.D. Meghe, Adv. for the Petitioner.
Mr.N.H.Joshi, AGP for the Respondent No1.
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CORAM : B.P.DHARMADHIKARI, J.
R.B.DEO, J.
DATE : 13.06.2017.
ORAL JUDGMENT (Per B.P.Dharmadhikari, J) :
1 The petitioner Association has on 2nd January, 1998
attempted to bring an important issue to the notice of this Court. Cognizance of the issue has been taken in public interest.
2 We have been hearing Advocate Shri Meghe for petitioner and learned AGP for respondent no.1 since last 2 to 3 days.
3 Though certain respondents are joined as a party in person, it appears that no specific role as such played by them has been urged. Only because of impact of a possible ::: Uploaded on - 22/06/2017 ::: Downloaded on - 23/06/2017 00:03:45 ::: 3 wp19of98.odt direction sought from this Court upon them, they have been joined as parties.
4 Briefly stated, Advocate Shri Meghe submits that system of "Selective Tendering" provided for in Manual of Public Works Department, has been abused and misused in present matter. He has invited our attention to works disclosed in Annexure B, Annexure C and Annexure D to demonstrate that that process was not applicable in the present matter. According to him, comparison of Annexure C and Annexure D straightway shows a loss of Rs. 1 lakh per painting. The amount paid on 16 works described in Annexure B could have been much less had public tenders been invited. He submits that in studied estimation of petitioner Sanghatana, the loss to public revenue is Rs. 14,45,000/-. Advocate Shri Meghe further submits that had matter been decided immediately it would have been beneficial to public but then even at this stage appropriate directions could be issued by this Court. He submits that if possible, a direction to inquire into those works should also be issued.
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5 Learned AGP has made available P.W.D. Manual
alongwith modified Schedule 42 (dated 16.12.2015) for perusal of this Court and has also given photographs of relevant extracts. He submits that in an emergency the power to take recourse to selective tendering is conferred and has been accordingly used. He states that in present matter, though, the work may have been known in advance and the power appears to have been used, but then circumstances in which it was used, are not on record. He states that respondent no. 1 is still in the process of finding out the relevant records. He adds that estimation of loss is only a guess work of petitioner and can not be accepted. Relying on Annexure C and D, he contents that argument of paying more sum of Rs. 1,000/- per painting is misconceived as there is no relation inter-se. 6 Upon instructions, from officer present informs that in course of time, the tender process has been refined, made more transparent and in most of cases, it is either paper tendering or e-tendering. The works mentioned in Annexure B are now being allotted by following ::: Uploaded on - 22/06/2017 ::: Downloaded on - 23/06/2017 00:03:45 ::: 5 wp19of98.odt appropriate procedure depending upon the value thereof. He submits that as transparent process is being followed, the grievance made by petitioner itself can not now arise and does not survive.
7 We find that the petitioner has in petition pointed out clause 2.2 of P.W.D. Manual which deals with tenders. Tenders are required to be sealed and invited in open and public manner either by advertisement in local newspaper or by a notice in English or regional language pasted in public places. Clause 210 governs situation prevailing in tribal / difficult areas where contractors do not become available easily for accepting such works. In that eventuality, the department is authorized to take recourse to process of selected tendering. A list of contractors is required to be mentioned and the work is to be communicated to them and offers are to be invited therefor at least from three contractors. Thereafter, the lowest offer can be accepted.
8 In present matter, perusal of Annexure B reveals that 19 works available under P.W.D. Division No.1, Division ::: Uploaded on - 22/06/2017 ::: Downloaded on - 23/06/2017 00:03:45 ::: 6 wp19of98.odt No. 2, Medical Division and Agriculture Construction Division Nagpur are shown. These works have been done in 1997-1998 through selective tendering. First work is about renovation of kitchen in cottage of Hon'ble Deputy Minister and P.A. at Ravi Bhavan. The approximate value (estimated) is stated to be Rs. 5.16 lakh. According to petitioner had there been proper tender and recourse to competitive bidding, the department could have saved amount of Rs. 50,000/- at least on this work. The work at Serial No. 2 is providing aluminum partition in chamber of Secretary in premises of Hyderabad House. Estimated cost is Rs. 4.99 lakh and according to petitioners saving could have been of Rs. 49,900/-. Thus, in all 16 works, petitioners have presumed 10% of the estimate to be the savings which could have been done had there been proper tendering. It is, therefore, guess work of petitioner that at least 10% of the amount could have been saved. In this jurisdiction, we are not in a position to accept such guess work or comment upon it either way. However, we find substance in contention of Shri Meghe that these works ::: Uploaded on - 22/06/2017 ::: Downloaded on - 23/06/2017 00:03:45 ::: 7 wp19of98.odt could not have been subjected to selective tendering process. As respondent no.1 has not produced relevant file, we do not know why renovation to cottage or need to provide aluminum partition to chamber arose and when it arose, whether it was known in advance and therefore, could have been processed through paper advertisement or then it arose at eleventh hour, are the material questions. In any case, such works normally can not arise at the eleventh hour. There would be previous planning and previous application of mind to it. The works, therefore, could have been published and tenders could have been invited. Renovation of cottage or provision of partition could have been made after some time. It appears that these works may have been done during winter session of assembly in Nagpur, and therefore, may have been treated as urgent works so as to enable the Hon'ble Minister or their secretaries to be benefited thereby. However, works can not be said to be of such a urgent nature that its functioning would have been rendered impossible. ::: Uploaded on - 22/06/2017 ::: Downloaded on - 23/06/2017 00:03:45 :::
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9 If in a occupied government residence roof falls or
there is other similar accident, adherence to normal procedure of inviting tenders for repairing it may result in undue delay thereby forcing the occupant to vacate the quarter. Such a type of emergency is not shown in these works. We therefore, find that the adoption of selective tendering process for Annexure 'B' work in 1997-98 has not be justified by respondents.
10 Even in tribal or difficult areas where works are to be allotted by selective tendering, relevant provisions contemplate drawing of list of contractors in advance. Thus, qualified, eligible contractors are available and through them the work is got done. Three of them are given opportunity to offer their rates and then the tender process is completed. This is not the situation in present matter.
11 Alongwith Pursis today learned AGP has produced clause 19 appended to schedule 42 which speaks of selective tendering. However, then it contemplates reasons to be recorded in writing and power is given to Chief ::: Uploaded on - 22/06/2017 ::: Downloaded on - 23/06/2017 00:03:45 ::: 9 wp19of98.odt Engineer, if the cost of work involved are upto Rs. 25 lakhs and to Superintending Engineer, if cost is Rs. 10 lakhs. But then this clause 19 again shows that it recognizes normal procedure of getting said works done through tender. Thus, only in exceptional circumstances, deviation from normal procedure has been permitted. In present matter, no such privilege has been claimed by respondent no.1. 12 Our observations could have been used with advantage had this matter been decided immediately after its filing. We are making these observations almost 19 years after petition came to be filed and 20 years after the works were done. The Schedule appended to P.W.D. Manual has been changed in the meanwhile. More transparent process is claimed to have been introduced. Petitioner Sanghatana acting vigilantly could have brought these new changes or record. But petitioner has not raised any grievance about it on any occasion. It has not pointed out any lacune in amended provisions. We only mention that it also did not move any application for early hearing in the matter.
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13 Bare perusal of Annexure C and D show that
both can not be seen as part of same transaction. But, then recourse to selective tendering was not warranted even then.
14 Petitioner, however, does not point out any nepotism or corruption in the process adopted. There is no complaint about quality of works. Hence, taking overall continue the matter, we are not inclined to issue any directions in this writ petition at this stage. However, considering the position of petitioner, we grant petitioner Sanghatana opportunity to approach again if after going through revised norms, it finds any mischief or any scope for improvement. Needless to add that if it finds any instance of abuse or misuse of power, it can approach proper forum in accordance with law. With these observations and opportunity to petitioner, we discharge Rule. Writ petition / P.I.L. is disposed of. No costs.
JUDGE JUDGE
belkhede, PA
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