Bombay High Court

Sahakari Audhyogik Sansthan vs State Of Maharashtra on 13 November, 2013

Bench: A.H. Joshi, R.V. Ghuge

                            ( 1 )      Writ Petition No.8992 of 2012




                                                             
         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD




                                     
              WRIT PETITION NO.8992 OF 2012

    Marathwada Rakh Upyogit Udyojak




                                    
    Sahakari Audhyogik Sansthan,
    Through its Chairman,
    Mr.Anant S/o.Vasantrao Gitte,
    Age-28 years, Occu-Business,
    R/o.Someshwarnagar, Parli Vaijnath,




                            
    Dist.Beed                                       PETITIONER
                                     
                  
              VERSUS

    1.   State of Maharashtra,
                 
         Through Secretary of Energy Department,
         Mantralaya Mumbai.

    2.   Maharashtra State Power Generation
         Company Ltd.,
      


         Through Chief General Manager,
   



    3.   Managing Director,
         Maharashtra State Power Generation
         Company Ltd.,





    4.   Executive Director (O & M)
         Maharashtra State Power Generation
         Company Ltd.,

    5.   Chief General Manager (Finance)





         Maharashtra State Power Generation
         Company Ltd.,

    6.   Executive Director (Finance)
         Maharashtra State Power Generation
         Company Ltd.,

    7.   Director (Operation)
         Maharashtra State Power Generation
         Company Ltd.,




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                                 ( 2 )        Writ Petition No.8992 of 2012




                                                                   
    8.   Director (Finance)
         Maharashtra State Power Generation




                                           
         Company Ltd.,

         All R/o.3rd floor, Prakashgadh,
         Plot No.G-9,




                                          
         Prof.Anant Kanekar Marg,
         Bandra (East),
         Mumbai - 400 051.                    RESPONDENTS

Mr.R.F.Totla, Advocate for petitioner.

Mr.S.K.Tambe, A.G.P. for respondent No.1 Mr.U.S.Malte, Advocate for respondent Nos.2 to 8.

Mr.D.K.Kulkarni, Advocate for respondent No.9.

(CORAM : A.H.JOSHI &

RAVINDRA V.GHUGE, JJ.)

DATE : 13/11/2013

ORAL JUDGMENT : (Per A.H.Joshi, J.)

1. Rule is made returnable forthwith and heard

both sides.

2. Petitioner's claim is as follows:-

(a) Petitioner is a Co-operative Society.

(b) It is a society formed by Small Scale Industries using fly ash as the raw material.

( 3 ) Writ Petition No.8992 of 2012

for said consortium for purchase of fly ash from respondent No.2 at Parali Vaijnath.

(d) In all 3 bidders had become successful in

qualification for consideration of price bid.

(e) The price bid of respondent No.9 was highest.

(f) As per the provisions contained in the tender

qualified participants having their bid low in

value, including the petitioner, to express willingness, to match the price bid with that of the highest bidder i.e. the bid of the

Respondent No.9.

(g) Petitioner concurred to offer the same price.

(h) The respondent No.2 prepared and submitted an

office note and submitted it to higher authorities. In the said note, the respondent No.2 proposed to allot 400 MT per day volume

of fly ash to respondent No.9 and 200 MT per day each to Adventure Processing Company and the petitioner.

(i) The proposal of respondent No.2 was not conceded to by the Director (Operations) and rather he proposed to allot 750 MT per day fly ash to respondent No.9, out of estimated

( 4 ) Writ Petition No.8992 of 2012

volume of 1000 MT per day.

(j) The proposal made by Director Operations) to allot 750 MT per day fly ash to the respondent

No.9 is approved by the Managing Director.

(k) Said decision of the Managing Director, the respondent No.3 is challenged in this

petition.

3. The grounds of challenge as offered in the

petition and focused during oral arguments advanced

before this Court are summarized as follows :-

(a) In fact, policy of the respondent Company is

to divide the volume and allot fly ash to many persons.

(b) That minimum quantity of fly ash has to be allotted to single bidder would be 250 MT per day.

(c) A clause contained in Amendment No-4 to the Tender Notice (copy whereof is on the record at Page No.37), reads as follows :-

"Minimum quantity of fly ash will be allotted to single bidder 250 MT/day ........."

( 5 ) Writ Petition No.8992 of 2012

(d) The proposal of dividing the volume of fly ash furnished by the Chief Engineer is declined by

the Director of Operation and concurred by Managing Director without recording reasons.

(e) The said decision to allot 750 MT fly ash per day to respondent No.9 is propelled due to

malafides.

(f) In the petitioner's re-joinder (copy whereof is at Page No.225) a statement is made, which

suggests some factual malafides, which reads as follows :-

"I say and submit that, I learnt

from reliable source that one Mr.Pandit Vibhute was Executive

Engineer at MAHAGENCO at Parali Thermal Power Station who retired in July 2013 and thereafter he joined the services of the Respondent No.9.

This itself is sufficient to read between the lines in respect of the favoritism, manipulation of record etc. in order to support respondent No.9."

(g) Petitioner's claim in this petition is not for a demand in that regards since petitioner's bid is like any other bidder in open bidding and it claims equal sharing in open bidding. 20% quota earmarked for supply to Small Scale Industrial Units has to go to its members as a reserved or earmarked quota.

( 6 ) Writ Petition No.8992 of 2012

(h) Petitioner wants sharing from un-reserved

volume i.e. portion being allotted to the respondent No.9.

4. The petitioner has based its claim on the

ground that the respondent No.3 ought not have

overruled the proposal given by the Chief General

Manager.

5. The petition is opposed urging as follows:-

(a) The office note given by the sub-ordinates is a proposal and it would at the most suggest

the superiors.

(b) The Authorities have to consider as to what is

in the best interest of the Company. In that background, a decision to allot a particular volume when taken by the highest authority

cannot be challenged except on the ground of violation of petitioner's fundamental rights.

(c) 20% of fly ash is earmarked for small scale industrial units and the members of petitioner can get required volume from un-allotted volume.

( 7 ) Writ Petition No.8992 of 2012

(d) Petitioner's demand does not appear to be made

for its own industrial consumption.

6. The matter pertains to allotment of fly ash,

which is a by-product, generated in the process of

generation of electricity by use of coal. Though

fly ash is a by-product, at the same time, it is a

raw material used in certain other industries and it

is a commodity which is freely saleable and it is

not a controlled commodity. Every citizen has right

to participate in its sale when publicly offered.

7. Upon scrutiny of petitioner's contentions, it

is seen that all that the petitioner claims as right

is based on:-

(a) Incomplete and erroneous reading of amendment

No.4

(b) Allegations of malafides are based on averments, which are tentative and not by way of specific facts. Those are based on inferences led by hallucinations than tangible evidence.

( 8 ) Writ Petition No.8992 of 2012

8. In the present case, the claim of the

petitioner is not based on any enforceable legal

right or any right accruing from any policy which

binds the respondent Nos. 2 to 8, or from any

commitment made by the respondents that particular

volume of the said by-product i.e.fly ash must be

supplied to the petitioner.

9. Petitioner's claim is seen to be based on its

expectations and desirability, which is sheerly one

sided matter and there is no involvement of the

respondents. The claim is thus based barely on