Bombay High Court
Paldewar Prashant Agrotech ... vs The State Of Maharashtra And ... on 16 June, 2016
Bench: S.S. Shinde
2324.2016WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2324 OF 2016
Paldewar Prashant Agrotech Private Limited,
Through it's Director
Prashant s/o Nagnath Paldewar,
Age: 45 Years, Occu : Business,
R/o. Shop No.32, New Mondha,
Nanded. PETITIONER
VERSUS
1] The State of Maharashtra,
[through it's Secretary]
Food, Civil Supplies and
Consumer Protection Department,
Mantralaya, Mumbai-32.
2] The Collector, Latur.
3] The District Supply Officer,
Latur.
[Copies to be served on Govt. Pleader,
High Court of Judicature of Bombay,
Bench at Aurangabad]
4] Kawale Roadlines,
Through it's Proprietor
Apparao s/o Khandoji Kawale
Age : 59 Years, Occu : Business,
C/o Kawale Petroleum,
Samrat Chowk, Nanded Road,
Latur
5] The Regional Transport Officer,
Nanded Dist-Nanded
[Resp.No.5 added as per Court's
Order dtd.29.04.2016] RESPONDENTS
::: Uploaded on - 17/06/2016 ::: Downloaded on - 30/07/2016 05:37:22 :::
2324.2016WP.odt
2
...
Mr.S.B.Talekar, Advocate for the petitioner
Mr.A.G.Magre, AGP for Respondent Nos.1 to 3
Mr.Pradeep Deshmukh, Advocate h/f. Mr.
Y.P.Deshmukh, Advocate for Respondent No.4.
...
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 08.06.2016
Pronounced on : 16.06.2016
JUDGMENT: [Per S.S.Shinde, J.]:
This Petition takes exception to the
inter-se communication between the Deputy
Secretary, Government of Maharashtra, Food,
Civil Supplies and Consumer Protection,
Mantralaya, Mumbai addressed to the District
Collector, Latur, on 4th February, 2016
[Exhibit-A Page-27] and also to the notice
dated 10th February, 2016 issued by the
District Collector, Latur calling upon the
petitioner to remain present within 5 days
from receipt of the notice to show cause
notice as to why penal action shall not be
taken against him [Exhibit-B Page-28].
2324.2016WP.odt
2] The learned counsel appearing for
the petitioner submits that the District
Collector, Latur is an ultimate Authority to
take decision on acceptance or rejection of
the tender. It is submitted that the
petitioner, pursuant to the tender notice
published online for distribution of food
grains in Latur District for the period
2013-2016, filed the tender on 20th August,
2014. The technical bids received from
tenderers were opened. The Collector, Latur
received 3 tenders, which were found eligible
inasmuch as all 3 tenderers were found
fulfilling the criteria prescribed in the
Government Resolution dated 26th November,
2012. On 20th August, 2014, the Collector,
Latur had called for report from the Deputy
Regional Transport, Latur, as well as Nanded
so as to verify the genuineness or
correctness of the information furnished by
the tenderers about vehicles possessed and
2324.2016WP.odt
controlled by them. On 25th August, 2014, the
information furnished by the petitioner was
forwarded to the Deputy Regional Transport
Officer, Nanded and his report was called for
verification. It is submitted that
as per the report of the Regional Transport
Officer, the petitioner did own 15 vehicles,
the description which was contained in the
report and the petitioner had 11 vehicles
under it's control. Respondent no. 4 is the
rival businessman, who also had submitted
tender, filed an objection questioning
correctness of information submitted by the
petitioner about number of vehicles owned and
controlled by it. On 27th August, 2014, the
Collector, Latur after verifying the
objection and giving respondent no.4 an
opportunity of being heard, rejected the
objection so raised by the petitioner.
3] It is further submitted that,
respondent no.4 submitted a representation to
2324.2016WP.odt
the Principal Secretary, Government of
Maharashtra, thereby questioning the validity
of the order dated 27th August, 2014 issued by
the Collector, Latur. It is submitted that
on 18th November, 2014, the Under Secretary to
Government informed the Collector, Latur to
take necessary action in respect of complaint
of respondent no.4. The Collector, Latur,
once again called for report from RTO, Nanded
and the same was received by the office of
the Collector. It is the submission of the
learned counsel for the petitioner that the
Collector, Latur, instead of taking decision
at his own level, forwarded the report of
RTO, Nanded stating that there was variation
in respect of 8 trucks out of 26. It is
submitted that on 25th April, 2015, the
District Supply Officer, Latur, had called
the petitioner company and respondent no.4
for negotiation of the rates at Mumbai on 28th
April, 2015 at 4.45 p.m. On 28th April, 2015
2324.2016WP.odt
respondent no. 4 submitted one more complaint
/ representation stating that the documents
in respect of 8 vehicles out of 26 vehicles
submitted by the petitioner were false. It
is submitted that on 5th May, 2015, the Deputy
Commissioner [Supply], Aurangabad informed
the District Supply Officer, Latur to remain
present along with the entire original record
and his objective remarks on 13th May, 2015.
The Regional Transport Officer, Nanded
submitted a fresh report. The Divisional
Commissioner, Aurangabad, submitted a
detailed report after hearing all the parties
including the District Supply Officer on 10th
July, 2015 to the State Government. On 20th
August, 2015, the Collector, Latur submitted
a report stating that the petitioner had
misled the Government since there is
variation in respect of number of trucks. On
16th September, 2015, the Collector, Latur
issued show cause notice to the petitioner.
2324.2016WP.odt
The said show cause notice was replied by the
petitioner by filing detailed reply on 14th
October, 2015. It was stated in the said
reply that out of the list of 26 trucks given
to the Collector, the documents in respect of
all those trucks were clear and beyond any
doubt, and therefore, there was no reason to
object about validity of those documents.
4] It is submitted that when the
District Collector was an ultimate authority,
the directions should not have been issued by
the Government Department to take action
against the petitioner. It is submitted that
though the Collector himself is empowered to
take decision, the Collector influenced by
the directions issued by the State
Government, issued show cause notice to the
petitioner on 10th February, 2016. It is
submitted that by the earlier orders passed
by the District Collector and also the Deputy
Commissioner [Supply], the entire controversy
2324.2016WP.odt
was set at rest and the petitioner's name was
included in the list of three qualified
bidders. Therefore, the impugned show cause
notice issued by the District Collector,
Latur and also the letter written by the
concerned Department to the District
Collector on 4th February, 2016, deserves to
be quashed and set aside.
5] The learned counsel appearing for
the petitioner submits that though the
contract / tender period awarded to the
respondent no.4 stood expired in the year
2013 itself, the said work under contract is
being continued through respondent no.4. The
respondent authority is not empowered to
continue respondent no. 4 after expiry of the
tender period in the year 2013. Such action
of respondent is against the public policy.
Relying upon the provisions in the Government
Resolution dated 26th November, 2012, issued
by the concerned Department, it is submitted
2324.2016WP.odt
that, to become eligible for filing tender /
bid the requirement of 20 trucks was
necessary. There are 10 talukas in Latur
District, and therefore, the tenderer is
required to own 10 trucks of his own and
shall possess 10 trucks under his control.
It is submitted that if the report submitted
by the Regional Transport Officer, Nanded
dated July, 2015 to the Deputy Commissioner
[Supply], Regional Commissioner Officer,
Aurangabad is carefully perused and
considered, he has stated in his report that,
out of 9 vehicles whose numbers are
mentioned, in five cases, there was mistake
by the office of RTO in giving incorrect
number of the vehicles and the name of the
owner. It is submitted that if the said
report is considered in its entirety, so far
5 vehicles are concerned, it was on account
of mistake committed by the RTO office in
mentioning wrong numbers of the vehicles or
2324.2016WP.odt
names of the owners. It is submitted that the
petitioner owns 10 trucks and also other 10
vehicles are under his control. Therefore,
requirement of 20 vehicles was fulfilled by
the petitioner as required to become eligible
to apply for the contract. Therefore,
relying upon the pleadings in the Petition,
grounds taken therein, annexures thereto,
copies of documents placed on record, the
learned counsel appearing for the petitioner
submits that, Petition deserves to be
allowed.
6] The learned counsel appearing for
the petitioner submits that respondent no.4
filed Writ Petition No.7437/2015 praying
therein for disqualifying the petitioner from
participating in the e-tender process.
However, the said Writ Petition was withdrawn
by respondent no.4.
7] On the other hand, the learned AGP
2324.2016WP.odt
appearing for the respondent - State
vehemently opposes the prayers in the
Petition and submits that, only show cause
notice is issued to the petitioner, and the
petitioner has every opportunity to reply the
said show cause notice. According to him,
the Writ Petition is premature, and
therefore, it is liable to be rejected.
8] The learned counsel appearing for
respondent no.4 invites our attention to the
averments in the affidavit-in-reply and
submits that on verification of the documents
and in particular list of the trucks
submitted by the petitioner, it was found
that in respect of some of the trucks, no
information was available with the office of
RTO. Some of the trucks are also belonged to
Trailer category. He invited our attention
to the report dated 9th March, 2015, prepared
by the Regional Transport Officer, Nanded and
also other documents placed on record and
2324.2016WP.odt
submits that the information submitted by the
petitioner about 8 trucks was wrong, and
therefore, the District Collector is right
and justified in issuing the show cause
notice to the petitioner so as to cause
inquiry and take appropriate action depending
upon the outcome of an inquiry.
9] The learned counsel appearing for
respondent no.4 further submits that Writ
Petition No.7437/2015, which was filed by
respondent no.4, was withdrawn in view of the
statement made by the learned Government
Pleader appearing for the respondent - State
before the High Court that the present
petitioner was declared as disqualified to
participate in the tender process.
10] We have given careful consideration
to the submissions of the learned counsel
appearing for the respective parties. With
their able assistance, perused the pleadings
2324.2016WP.odt
in the Petition, grounds taken therein,
annexures thereto, reply filed by respondent
no.4. Upon careful perusal of the contents
of the letter written by the Deputy Secretary
of the concerned Department, Government of
Maharashtra to the District Collector, Latur
[Exhibit-A Page-27] dated 4th February, 2016,
it appears that, the State Government, after
considering the report received from the
Divisional Commissioner and adverting to the
contents of the complaint filed by respondent
no.4, issued directions to the District
Collector, Latur, directing him to reject the
tender of the petitioner and take appropriate
action against the petitioner. It further
appears that respondent Collector issued show
cause notice to the petitioner on 10th
February, 2016. The gist of the substance of
the said notice, which was supposed to be
replied to by the petitioner, is reproduced
herein below:
2324.2016WP.odt
R;k vuq"kaxkus mi izknsf'kd ifjogu vf/kdkjh]
ukansM ;kauk ;k dk;kZy;kpss le dzekadkps i= fnukad
[email protected]@2015 vUo;s mi izknsf'kd ifjogu vf/kdkjh
ukansM ;kaP;kdMwu Qsj rikluh vgoky izkIr dj.;klkBh ;k
dk;kZy;kps /kkU; [kjsnh vf/kdkjh ;kauk ikBfo.;kr vkys gksrs R;k
uqlkj laca/khr RTO ;kuh ogkukckcrps Qsj rikl.kh vgoky
lknj dsys vkgs-
mi izknsf'kd ifjogu vf/kdkjh] ukansM ;kauh lknj
dsysY;k nksugh vgokykps vkoyksdu dsys vlrk rQkor vk<Gwu
vkyh rs [kkyhy izek.ks
fnukad [email protected]@2014 vUo;s lknj dj.;kr vkysYkk fo"k;kafdr
vgokykr 26 okgukaph dkxn i= ;ksX; vlys ckcr dGfoys
vkgs- fnukad [email protected]@2015 vUo;s lknj dsysY;k vgokykr rhu
okgukaps dkxn i= R;kaP;k vfHkys[kkoj miyC/k ulY;kps o ,d
okgu ijHk.kh dk;kZYk;kP;k ukokus ukgjdr izek.ki= fnukad
[email protected]@2013 jksth ns.;kr vkY;kps o ,d okgu Vsªsyj
¼ ,u-Vh ½ laoxkZrhy vkgs rlsp rhu okguekydkP;k ukoke/;s
cny >kysyk vkgs- Eg.ktsp 26 okguk iSdh 8 okguke/;s rQkor
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miO;oLFkkid egkjk"VªjkT; o[kkj egkeaMG ¼vkS½ ukansM miLFkhr
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?ksrysY;k vk{ksikoj loZ ckch riklwu 04 okgukr rQkor
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vlY;kps oLrqfu"B vgoky 'kklukl lknj dsys vkgsr-
R;kuqlkj vki.k bZ&fufonk izfdz;se/;s vkWuykbZu
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fuf'pr >kys vkgs-
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uksan ?;koh-
11] Therefore, the petitioner has an
opportunity to reply the said show cause
notice and rely upon the necessary documents
in its possession in support of it's
contention that the information submitted by
him about the vehicle is correct. It is true
that by the said notice, the petitioner was
asked to reply within 5 days from the date of
2324.2016WP.odt
issuance of such show cause notice by the
Collector. Some more time ought to have been
granted by the Collector for replying show
cause notice. At the same time, in our
opinion, the petitioner also could have
sought further time to reply the notice, if
the time of 5 days was found to be
insufficient to reply it. The District
Collector issued the said show cause notice
giving reference of the letter received by
him from the concerned Government Department
wherein it was directed to the Collector to
reject the tender of the petitioner and take
appropriate action against him. Therefore,
the learned counsel appearing for the
petitioner contends that the Collector may
not take independent decision uninfluenced by
the directions issued by the State
Government. Since the Petition is filed
challenging the show cause notice and inter-
se communication between the Collector and
2324.2016WP.odt
the concerned Department. In our opinion, the
Petition is premature and also raises
disputed questions of facts. Therefore,
appropriate course open for the petitioner is
to file detailed reply to the show cause
notice with necessary documents in support of
petitioner's contention. The District
Collector, after giving an opportunity to the
petitioner, and uninfluenced by the
directions issued by the State Government,
shall take appropriate decision.
12] We cannot brush aside the arguments
advanced by the learned counsel for the
petitioner that, in spite of agreement /
contract period of respondent no.4 has come
to an end in the year 2013 itself, he is
being continued as contractor, beyond the
period of contract for more than 2 years. In
our opinion, the State Government should have
initiated fresh tender process instead of
continuing respondent no.4 after the expiry
2324.2016WP.odt
of his contract period. We hope and expect
that the respondent State and State
Authorities would take steps forthwith to
issue fresh tender notice.
13] In the light of discussion in the
foregoing paragraphs, we are not inclined to
quash and set aside the impugned show cause
notice, however, we direct the Collector to
allow the petitioner to file reply along with
the relevant documents within three weeks
from today. The Collector, after affording
reasonable opportunity of hearing to the
petitioner and the representatives of the
Department, if any, shall take appropriate
decision without influenced by the directions
issued by the State Government by letter
dated 4th February, 2016. In short, the
Collector shall ignore the said directions
issued by the State Government and
independently take decision after taking into
2324.2016WP.odt
consideration the reply of the petitioner,
the relevant documents and also the record
maintained by the office of the Collector in
respect of the subject matter of the Petition
as expeditiously as possible, however, within
10 weeks from today. Needless to observe that
if the petitioner fails to file reply to the
show cause notice within three weeks from
today, the Collector shall proceed further on
the footing that the petitioner has nothing
to add beyond the record maintained by the
State Authorities in respect of subject
matter of show cause notice. The petitioner
shall extend full co-operation for early
decision of the Collector. Till decision is
taken by the Collector, no coercive action
should be taken against the petitioner either
on the basis of directions issued by the
State Government in its letter dated 4th
February, 2016 to the Collector or
allegations in the show cause notice.
2324.2016WP.odt
14] With the above directions, the
Petition stands disposed of. No costs.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
