Bombay High Court
M/S. Nisar Sons Thr. Proprietor ... vs State Of Maha., Ministry Of ... on 31 March, 2016
Bench: B.P. Dharmadhikari
Wp752.16 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.752 OF 2016.
PETITIONERS: 1) M/s Nisar Sons,
Through its Proprietor, Qumar Ahmed
Siddique, Aged 55 years, Occu: Business,
R/o Qtr.No.55, WCL Colony, Walani,
Tq.Saoner, Distt.Nagpur.
2) M/s S.K.Enterprises,
ig through its Proprietor, Shri Dinesh
s/o Khemsingh Damahe, R/o Plot No.159,
Ward No.8, Mahajan Lay-out, Saoner, Tq.
Saoner, Distt.Nagpur.
3) M/s V.Chalsani Enterprises,
through its Proprietor, Johny V.Chalsani,
aged 40 years, Occu: Business, at Post
Mouda, Tq.Mouda, Distt.Nagpur.
4) Shri Ravindra s/o Rishkesh Kotal,
aged 45 years, occu: Business, R/o
Ma Bambleshwari Nagar, Piwali Nadi,
Kamptee Road, Nagpur.
5) Shri Jitendra s/o Ganesh Maske,
aged 38 years, occu: Business, R/o
Kandri Kanhan, Tq.Parseoni, Distt.
Nagpur.
: VERSUS :
RESPONDENTS:1) The State of Maharashtra,
Ministry of Revenue and Forest,
Mantralaya, Mumbai 0 32.
::: Uploaded on - 05/04/2016 ::: Downloaded on - 05/04/2016 23:59:27 :::
Wp752.16 2
2) District Collector, Nagpur.
3) Mining Officer,
District Collectorate, Nagpur.
4) Pradip s/o Nagoraoji Dhengre
aged about 38 years, M/s P.N.Dhengre,
R/o House No.219, Ward No.5,
Mahadula, Koradi, Tq.Kamptee, Distt.
Nagpur. (INTERVENORS)
5) Vardharaja s/o Balraj Pilley,
Pro.Saibaba Traders, Kanhan, Distt.
Nagpur.(INTERVENORS)
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Mr.C.S.Kaptan, Senior Advocate with Mr.A.P.Kalmegh Adv. for
the petitioners.
Mrs.Bharti Dangre, Government Pleader with
Mrs.A.R.Taywade, AGP for respondent nos.1 to 3.
Mr.M.G.Bhangde, Senior Advocate with Mr.R.M.Bhangde,
Adv. for respondent no.4.
Mr.A.S.Mehadia, Advocate for the respondent no.5.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM
: B.P.DHARMADHIKARI AND
P.N.DESHMUKH, JJ.
DATED: MARCH 31, 2016.
ORAL JUDGMENT : (B.P.Dharmadhikari, J.)
1. By this petition, filed under Article 226 of the
Constitution of India, five petitioners seek quashing of re-
auction notice dated 21st of January, 2016 and an order dated
27th of January, 2016 cancelling allotment of sand ghats in
their favour. This Court has, on 3rd of February, 2016, issued
notice in the matter and while permitting re-auction by
respondents, directed that no allotment be done in favour of
successful bidder without permission of the Court. This
interim order continues to operate even today.
2.
Intervenor - respondent no.4 Pradip Dhengre and
Intervenor - respondent no.5 Vardharaja Pilley claim that in
consequential re-auction, they are the highest bidders entitled
to allotment of sand ghats at Waki-A and Juni Kamptee-A.
3. This Court has accordingly permitted them to be
impleaded as intervenors.
4. Looking to the nature of controversy and as
requested by parties, we have heard learned Senior Advocate
Shri C.S.Kaptan with Advocate Shri A.P.Kalmegh for
petitioners, learned Government Pleader Smt.Dangre with
learned Assistant Government Pleader for respondent nos.1 to
3, learned Senior Advocate Shri M.G.Bhangde with Advocate
Shri R.M.Bhangde for respondent no.4 and Advocate
A.S.Mehadia for respondent no.5.
5. The parties have been heard finally by issuing rule
and making it returnable forthwith, with their consent.
6. Learned Senior Advocate Shri C.S.Kaptan submits
that petitioners were required to submit to the terms and
conditions unilaterally and arbitrarily imposed, as without
submission thereto registration for participation in on-line
tender process itself could not have been possible. He states
that the standard proforma which was required to be
submitted for such registration itself carried a stipulation that
petitioners have verified the approach road availability to
sand ghats and in future, would not raise any dispute about
it. As the petitioners had no other option, they were
constrained to submit to the same. In an auction conducted
in accordance with law they are found to be the highest
bidders and accordingly these sand ghats have been alloted to
them. Balance 75 per cent payment out of bid amount was
to be completed within fifteen days. Before effecting that
payment, when petitioners approached the respective ghats,
they found that either there was no such approach road or
then there were objections by the elected office barer like
Sarpanch to the user of approach road on the various counts.
As the approach road itself could not have been used, sand
ghat could not have been approached and excavation could
not have been carried out. Hence, before expiry of stipulated
period of fifteen days, respective petitioners, in writing,
pointed out this situation to respondent no.2 - Collector and
sought his intervention. The learned Senior Counsel relies
upon the Government policy and relevant terms and
conditions regulating the allotment of sand ghats or its
working to urge that in the light of this dispute, the
respondent nos. 1 to 3 ought to have taken steps to look into
it and redress it. However, without undertaking that exercise,
first a notice of re-auction was published and after its
publication, on next day, the orders cancelling allotment in
favour of petitioners have been passed. He, therefore, states
that in the light of publication of notice of re-auction and
decision to re-auction already taken, quashing or cancellation
of allotment of sand ghats in case of petitioners was also pre-
decided and hence a "farce" has been only placed for
consideration in defence before this Court. He contends that
representations made by petitioners have not been looked
into with open mind fairly but the same have been rejected in
the backdrop of a notice for re-auction to facilitate its holding.
Thus prescribed procedure in policy has not been followed
and the grievance of petitioners has also not been looked into
impartially and unbiased manner. He has taken us through
the relevant terms and conditions of policy as also the
agreement which petitioners were required to submit for
procuring on-line registration, to urge that the respondents
have violated those provisions and terms and conditions.
7. The learned Senior Counsel opposes the
intervention by urging that re-auction is expressly subject to
result of this petition and hence no legal rights of intervenors
has been violated. He has taken support from judgment of
Hon'ble Apex Court reported at AIR 1986 SC 1571(1)
(Central Inland Water Transport Corporation Ltd. And anr.
..vs.. Brojo Nath Ganguly and anr.), particularly paragraph
nos.90,94 and 101 to urge that the terms and conditions
which forced petitioners to accept the unreasonable
stipulations cannot be used to their prejudice. He submits
that though everywhere it is specified that maps of respective
sand ghats with approach road were available in the office of
the concerned authorities for perusal, no such documents
were available at any point of time and only because
petitioners had accepted not to raise any dispute about the
approach road, the otherwise valid offer found to be the
highest, is being ignored. He has also invited our attention
to individual facts of all cases to submit that material on
record reveals that the road was either not available or could
not have been used because of objection of Gram Panchayat
or Gram Sabha. Our attention is invited to the fact that on
10th of February, 2016 respondent no.2 - Collector sought
information from Tahsildar of respective places about status
of approach road. That report has been submitted by the
office of Tahsildar, Parshivani and as per that report no
approach road as such has been expressly pointed out. He
submits that for Bakhari sand ghat at Parshivani alloted to
petitioner no.1, it is stated that the approach road is on forest
land and it is expressly mentioned by Tahsildar that through
survey number under forest department, the road would be
required to be prepared. In relation to Saholi (Dorli) sand
ghat at Parshivani alloted to petitioner no.2, it is mentioned
in that report that approach road on government land exists.
He points out that, however, the report fails to look into
objection raised by Gram-Panchayat of that place. The fact
that approach road to Juni Kamptee-A sand ghat alloted to
petitioner no.5 goes through private land also finds mention
in this report. According to him, therefore even after this
Court was moved and even after re-auction, the approach
road is not available. In this situation, he contends that
orders of cancellation as also re-auction need to be quashed
and set aside and allotments to petitioners need to be
restored and the respective sand ghats should be continued
with them.
8.
Shri Bhangde, learned Senior Counsel for
intervenor Shri Pradip submits that intervenor Pradip claims
Waki sand ghat and therefore his intervention opposes the
petition as filed by petitioner no.4 - Ravindra. He submits
that the said petitioner has not approached this Court with
clean hands and terms and conditions duly published were
not pointed out to this Court. As per those terms and
conditions, verifiction of approach road is the sole
responsibility of said petitioner and Clause 5 or Clause 21 of
those terms can never be assailed by petitioner. The said
petitioner has executed agreement in prescribed pro forma
and undertaken not to raise any dispute in relation to
approach road. The petitioner declared that he had
inspected sand ghat, seen approach road and thereafter has
given an undertaking. This agreement or undertaking is also
not questioned in the present matter.
9. The learned Senior Counsel Shri Bhangde has
relied upon the judgment of Hon'ble Apex Court reported at
2013(11) SCC 531 (Bhaska Laxman Jadhav and ors. ..vs..
Kiaramveer Kakasaheb Wagh Edu.Society and ors.),
particularly paragraph nos.42 to 47 to point out the effect of
such suppression.
10. The learned Senior Counsel further contends that
the advertisement and terms and conditions accompanying it
are in consonance with policy of State Government and in
absence of any challenge to that policy, the grievance of
present nature cannot be looked into. To substantiate this
contention he draws support from judgment of the Hon'ble
Apex Court, reported at (1996)4 SCC 208 (Laxmikant and
ors. ..vs.. Satyawan and ors.). He argues that knowing fully
well all terms and conditions, petitioner no.4 participated in
the tender/auction process and is therefore estopped from
questioning the same, at this stage.
11. Inviting our attention to Clause B (2) of Policy, he
states that 1/4th amount ought to have been deposited by
petitioner no.4 on the date of auction itself but petitioner
no.4 has not deposited that amount till date. The petition in
paragraph no.6 makes an incorrect statement that the
acceptance letter has been issued to all petitioners and also to
petitioner no.4 on 2nd of January, 2016 and petitioner no.4
was also directed to deposit balance amount. He contends
that as petitioner no.4 did not deposit 1/4th amount, such
letter was not issued to him at all. The reasons for
cancellation in case of petitioner no.4 are, therefore, different
and do not match with the letter of termination dated 27 th of
January, 2016 in case of remaining petitioners. To point out
effect of not depositing this 25 per cent amount on the date of
auction itself, he draws support from the judgment of the
Hon'ble Apex Court, reported at (1973) SCC 668 (State of
Madhya Pradesh and anr. ..vs.. Firm Gobardhan Dass Kailash
Nath).
12. Learned Senior Counsel further states that as per
policy, the auction can take place only after finalization of
approach road. There is a report of Tahsildar about the same
and hence the revenue authorities have performed their
duties. He contends that, petitioner no.4 never attempted to
use the road at all and as such grievance made before this
Court is without any cause of action. The concerned Gram
panchayat pointed out in its letter that road needed to be
strengthened and petitioner never complained that road has
not been so strengthened. He has taken us through
representation dated 13th of February, 2003 filed by petitioner
no.4 for said purpose. He further argues that the grievance
of this nature ought to have been raised before auction was
held. Had there been some substance in such grievance, in
that event, auction could have been postponed. He submits
that, as such the entire grievance as canvassed on behalf of
petitioner no.4 before this Court is liable to be rejected.
13. Pointing out the clauses dealing with removal of
obstruction or redressal of the grievance, he states that as bid
of petitioner no.4 has never been accepted and there is no
allotment of sand ghat to him, these provisions are not
attracted in his case. He further submits that the District
Level Committee for redressal of grievance under Clause 16 of
Policy can look into complaints made by third parties and not
by contractor like petitioner no.4.
14. He has invited our attention to additional affidavit
filed by intervenor Shri Pradip to show that this sand ghat
was auctioned earlier in the year 2011-12 as also 2012-13
and at that juncture no such objection was raised by anybody.
He contends that, therefore the grievance of present nature
must be dismissed and sand ghat must be allowed to be
alloted to intervenor Pradip. He further adds that, as for the
period of over two months sand ghat could not be allotted to
intervenor Pradip, the tenure of lease should be extended
proportionately. He draws support from the judgment of the
Hon'ble Apex Court reported at (2003)1 SCC 726 ((Beg Raj
Singh ..vs.. State of U.P. and ors.) for this purpose.
15. Advocate Shri Mehadia appearing on behalf of
intervenor Vardharaja adopts argument of learned Senior
Advocate Shri Bhangde. He points out that petitioner no.5,
to whom Juna Kamthi Ghat was earlier allotted, claims that
he approached that sand ghat on 13 th of January, 2016 for
preparation/construction of approach road. As there was no
allotment of sand ghat in his favour, he could not have
attempted even to construct any approach road. He invites
attention to communication dated 20th of May, 2015 sent by
Gram Panchayat of Juni Kamthi by which Gram Panchayat
pointed out that road was damaged due to plying of heavy
vehicles carrying sand and therefore sought its repairs
including periodical sprinkling of water to avoid dust
problem. He submits that this resolution itself shows that the
road is available and was being used.
16. Learned counsel invites attention to Civil
Application No.425 of 2016 (disposed of) moved by
Intervenor Vardharaja seeking his impleadment, to urge that
petitioner no.5 is regularly in business of sand and has been
participated in auction of sand ghats. The sand ghats at Juni
Kamptee-A, Juni Kamptee-B and Pimpri Kanhan are situated
on same road and petitioner no.5 had taken Juni Kamptee-B
and Pimpri Kanhan sand ghats in 2012-13 and is well
acquainted with location and geographical situation as also
approach roads. Advocate Mehadia submits that in this
situation the objection raised by petitioner no.5 is clearly by
way of afterthought and as he has avoided to deposit the
balance amount of 75 per cent, re -auction of Juni Kamptee-A
ghat needs to be maintained.
17. Learned Government Pleader has adopted
arguments of learned Senior Advocate Shri Bhangde as also
Advocate Shri Mehadia. She points out that in petition, there
is a specific assertion that petitioners are in business of sand
excavation and transportation and have been taking on lease
the sand ghats. She therefore submits that all petitioners are
aware of the terms and conditions of policy. In this
background, she has explained the relevant terms and
conditions as contained in the policy. She has also
commented on the clauses which deal with removal of
obstruction or redressal of grievance. She submits that there
is also provision of refund of amount in certain contingencies
and as per Clause C (22), the period of grant cannot be
extended. She further submits that terms and conditions
published before re-auction and terms and conditions
contained in policy are in consonance with each other.
Auction has been held on 31st of December, 2015 and hence
25 per cent payment ought to have been effected on that day
only. 15th of January, 2016 was the last date for completing
payment of balance 75 per cent amount.
18. All representations have been made just before a
day or two of expiry of the 15th January, and non-existance or
non-available grievance has been made. She points out that
petitioner no.2 was alloted Saholi-B Ghat and there Sarpanch
of Gram panchayat raised an objection on 12th of January,
2016. After receipt of that letter, petitioner has made
representation. She has invited our attention to earlier
resolution of Gram-Panchayat dated 22nd of February, 2016 to
point out that in that resolution, the gram panchayat pointed
out availability of 'Pandhan' and its possible use as approach
road. The Gram panchayat also demanded 30 per cent of the
amount generated in auction as gram panchayat fund. She
submits that this resolution of larger body , which expressly
permits use of road, supersedes the letter of Sarpanch and
that letter cannot stand scrutiny of law. She further points
out that date of completing balance 75 per cent of payment
mentioned in representation of petitioner no.2 dated 15 th of
January, 2016 is incorrect.
19. Learned Government Pleader further states that
representation of petitioner no.3 also cannot be viewed
differently and petitioenr no.3 has approached the sand ghat
for constructing a private road. She submits that thereafter on
21st of January, 2016 petitioner no.3 submitted a
representation objecting to re-auction. According to her,
therefore, petitioner no.3 has also not approached this Court
with correct facts and clean hands.
20. Petitioner no.1 also claims that he went to sand
ghat with a view to prepare the approach road and found that
it did not exist. This representation has been made on 13 th of
January, 2016 and it is received by the office of Collector on
14th of January, 2016.
21. Insofar as cases of petitioner nos.4 and 5 are
concerned, she adopts arguments already advanced by
learned Senior Advocate Shri Bhangde and Advocate Shri
Mehadia. She adds that all these representations were put in
inward section at eleventh hour and the Collector even did
not get time to verify or reply to it before expiry of period of
fifteen days.
22. She has produced before the Court a chart showing
in brief out-come of re-auction process. She highlights the loss
sustained by the State therein.
23. Learned Senior counsel for petitioners in reply
pointed out that in writ petition, in paragraph no.5, it has
been specifically pointed out that petitioner no.4 has
deposited only 20 per cent of the amount. It is never claimed
that the said petitioner has deposited 25 per cent of the
amount. It is further pointed out that as in petition there are
total five petitioners, while drafting, on account of
inadvertence, the case of petitioner no.4 could not be
separated while urging that a acceptance letter dated 2nd of
January, 2016 was issued to petitioners.
24. Inviting our attention to memo of Civil Application
No.425 of 2016, it is stated that in paragraph no.5 instead of
mentioning correct number of petitioner as petitioner no.5,
everywhere petitioner no.4 has been mentioned. As such, it
was not then felt necessary to obtain any instructions about
earlier operation of sand ghats by petitioner no.5. Today
during argument Advocate Shri Mehadia for the first time,
orally pointed out the error, alleged to be typographical, in
paragraph no.5. Learned counsel for peittioners therefore
sought time to obtain instructions from petitioner no.5 in this
respect.
25. In brief, the contentions already reproduced
(supra) have been reiterated to urge that the petitioner
cannot be non-suited as they were forced to participate in
tender process on terms and conditions which they could not
have assailed at the threshold.
26. Perusal of writ petition shows that the petitioners in
paragraph no.2 of Writ Petition mention that they are in
business of sand excavation and transportation and to take on
lease the sand ghats auctioned by respondent nos.2 and 3.
Thus, all five petitioners before this Court, therefore, are
regularly operating as contractors in the business of sand
excavation and participating in ghat auctions. They are
therefore aware of the policy decision dated 12th of March,
2013 which regulates the allotment and the auction. It is not
their case that they are not aware of the same. That policy
vide Clause 2 requires Collector to verify availability of sand
stock and available approach road. The Gram Sabha is also
expected to recommend auction of such sand ghat before it is
undertaken. As per Clause 3(e) of the Policy, video shooting
of such gram Sabha is also expected. In Clause 6 of the
Policy, person who desires to participate in auction has to
tender evidence of the fact that he has been paying income
tax regularly and his Pan Number, TIN Number provided by
Sales Tax Department. In Clause 'C' thereof, terms and
conditions of auction to be included in agreement with
successful bidder are also given. Clause 4 therein casts an
obligation upon petitioner to satisfy himself about availability
of sand stock and approach road. It is expressly mentioned
therein that no grievance in that respect shall be looked into
thereafter. The terms and conditions for E-auction for period
up to 30th of September, 2016 are on same lines and there is
no inconsistency whatever in the two. The pro forma of
agreement expressly envisages a declaration and accordingly
each petitioner has submitted that declaration. Petitioners
have declared that they have inspected sand ghat and
approach roach and would not raise any objection about its
status or about feasibility of such transport by such roads.
27. Thus, all petitioners were, since formation of policy
on 12th of March, 2013 were aware of terms and conditions
thereof and also of agreement required to be submitted. They
were also aware of the obligations caste upon them in
relation to availability of approach roads and participated in
earlier auctions accordingly. They cannot therefore contend
before this Court that they were coerced or forced to sign on
dotted lines as a condition precedent. They had earlier also
participated in the process and in this situation their reliance
upon the judgment of Hon'ble Apex Court reported at AIR
1986 SC 1571(1) (Central Inland Water Transport
Corporation Ltd. & anr. ..vs.. Brojo Nath Ganguly and anr.)
(supra) is unsustainable. In the said judgment Hon'ble Apex
Court has considered the plight of a workman as against his
mighty employer and observations in paragraph no.90 or
other paragraphs on which petitioners have placed reliance
need to be appreciated in that background. However,
Hon'ble Apex Court in paragraph no.90 has observed that
"This principle may not apply where both parties are
businessmen and the contract is a commercial transaction."
Here petitioners before us are contractors who are regularly
doing the business of excavation of sand and hence they
cannot be equated with poor workers.
28. Insofar as petitioner no.4 Ravindra Kotal is
concerned, it is not in dispute before this Court that he did
not deposit the balance amount to raise the amount already
in deposit to 25 per cent on 31st of December, 2015 i.e. the
date of auction. As per terms and conditions, he has already
deposited 20 per cent and shortfall ought to have been
deposited by him on 31st of December, 2015. With the result,
there is no letter of acceptance in his fvaour issued on 2 nd of
January, 2016. In paragraph no.6 of writ petition it has
been pleaded on his behalf that there is a letter of acceptance
on 2nd of January, 2016 also in his favour. We accept this to
be an inadvertent error which had occurred while drafting the
common petition. However, it clearly means that sand ghat
was never allotted to him and as such after 31 st of December,
2015, there was no question of his further participation in
tender process. Perusal of judgment reported at (1973)1
SCC 668 (State of Madhya Pradesh and anr. ..vs.. Firm
Gobardhan Dass Kailash Nath), particularly paragraph no.9
therein, shows that the participation of such a person comes
to an end upon his failure to complete 25 per cent of the bid
amount. Hon'ble Apex Court in facts before it found that
such a condition cannot be waived even by the competent
authority and before us, there is no plea of its waiver.
29. Petitioner No.4 is concerned with sand ghat at
Waki and the report of Tahsildar to Collector in this respect
reveals that there exists a road abutting village. It is also
mentioned that there is some objection raised by office of
Pench Irrigation Project. The Tahsildar has certified that he
has verified availability of approach road. The intervenor has
produced before this Court on affidavit a communication
dated 14th of March, 2016 sent by office of Pench project that
petitioner no.4 had never approached it seeking permission to
use the bridge for heavy transport. Thus, without even
undertaking any such exercise, petitioner no.4 has raised
objection on 13th of January, 2016 and did not even point out
that he has not completed payment of 25 per cent amount.
His representation mentions that he could not find any road
at all. Thus representation is again factually incorrect.
30. Conduct of petitioner no.5 Shri Jitendra Maske is
not different. In representation dated 13th of January, 2016,
after mentioning that he has paid 25 per cent of
E.M.D.amount, he states that he had approached for
construction of road and at that time the officers of Municipal
Corporation and Nagar Parishad were present there and they
did not permit him. They also did not permit him to lift sand.
It is further pleaded that the approach road is cement road in
village and under apprehension that it would be broken,
villagers have obstructed and prohibited its use.
31. It is to be noted that he did not deposit balance
amount and therefore there was no final allotment of sand
ghat in his favour. As such there was no question of his
lifting any stand or attempting to construct any road before
completing that payment. Gram panchayat Juni Kamptee on
20th of April, 2015 itself has passed resolution and pointed out
availability of road but has also placed on record need to
repair it. These documents, therefore, show the availability
of road.
32. Though intervenor Vardharaja in Civil Application
No.425 of 2016 attempted to demonstrate that petitioner
no.5 is aware of availability of approach road and
geographical location of this sand ghatm we find that learned
counsel representing petitioner no.5 is handicapped because
of typographical error in paragraph no.5 of Civil Application
No.425 of 2016. It is, therefore, not proper on our part to
consider that aspect.
33. The perusal of judgment in Laxmikant and ors.
..vs.. Satyawan and ors. (supra) shows that when with
knowledge of such terms and conditions petitioners
participated in tender process, they are legally estopped from
challenging that auction and these terms and conditions.
34. In (2013)11 SCC 531 (Bhaskar Laxman Jadhav
and ors. ..vs.. Karamveer Kakasaheb Wagh and ors.), Hon'ble
Apex Court has in paragraph Nos.42 to 47 pointed out effect
of suppression of facts. Petitioner No.4 has not pointed out
that he did not complete 25% of the amount and therefore
sand ghat was not alloted to him. He also did not argue and
point out that therefore order of cancellation in his case was
different than the order of cancellation in case of other four
petitioners.
35. When petitioners before this Court are in business
of sand excavation and have participated in such auctions
even in past, the grievance of present nature being made by
them cannot be accepted. They have not pointed out that
they were not aware of geographical location of these sand
ghats or then were not aware about the position or
availability or their status of approach roads. When they are
excavating sand from other ghats, it cannot be accepted that
they are not aware of location and position of other sand
ghats. When they are in trade, they are aware of advantages
and degree of difficulties, if any, of other sand ghats also. In
any case, in the affidavit, they have accepted the availability
of sand stocks and also availability of approach road. They
have not pointed out to this Court that they have never
operated the relevant sand ghat in the past. Intervenor
Vardharaja has attempted to demonstrate that petitioner no.5
has done so and has suppressed that fact. Though we are not
accepting this statement it was obligatory for all the
petitioners to plead that they have not operated these sand
ghats in past and explain the circumstances in which they
claim ignorance of availability of approach roads. Similarly,
material which has been pressed into service by both
intervenors ought to have been pointed out by the office of
Collector by filing affidavit before this Court. Office of
Collector also has not taken pains to bring on record correct
facts. Said office could have demonstrated the past history of
each petitioner. Why said office did not protect interest of
State fully and effectively is not understood.
36. The chart produced by learned Government Pleader
during argument shows that revenue has in re-auction
suffered loss of 59,66,000/- in so far as Saholi-B sand ghat for
which petitioner no.2 has approached this Court. It has
suffered loss of Rs.76, 94000/- as far as sand ghat at Chikna
(tahasil Kamptee) for which petitioner no.3 has approached
this Court. Petitioner No.4 has approached this Court for
Waki-A sand ghat and there in re-auction State Government
has suffered loss of Rs.50,87,999/-. In re-auction of sand ghat
at Juni Kamptee-A for which petitioner No.5 is before this
Court, the State Government has not sustained any loss as it
appears that intervenor Vardharaja has offered same amount/
Similarly in re-auction of Bakhari sand ghat in relation to
petitioner no.1 before this court. Revenue has gained amount
of Rs.10,42,111/- in re-auction.
37. Sand ghat at Dorli, Tq.Parshivani was also offered
for re-auction but the re-auction could not take place as there
was no bidder. It appears that in the meanwhile considering
the nature of grievance of Contractor in that matter, the State
Government has accepted to continue the sand ghat with that
Contractor M.Z.Enterprises only. Writ Petition No.843 of
2016 was filed in that respect by M.Z.Enterprises before this
Court and it has been disposed of on 30 th of March, 2016 in
view of this development.
38. Roving attempt made by petitioner is therefore
exposed. In this situation, we find that petitioners are not
entitled to any relief in these matters. Similarly, request of
intervenor Shri Pradip for grant of extension of tenure of
lease of sand ghat cannot also be looked into in this petition.
We keep that aspect open for due consideration if any
occasion therefor arises. It is open to State to recover the loss
suffered by it from petitioners and also its officers who
avoided to disclose full facts in present matter by proceeding
against them as per law.
39. Again keeping on record fact that petitioners did
not point out necessary facts to this Court and office of
Collector has also failed in assisting this Court properly, we
dismiss the writ petition. However, in the circumstances of
the case, we decline costs in the matter to State.
JUDGE JUDGE.
Chute
