Bombay High Court
M/S. Hansa Transportation Thr. ... vs District Collector, Nagpur And ... on 5 May, 2016
Bench: V.A. Naik
WP 2182/16 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 2182/2016
M/s Hansa Transportation,
through its Proprietor
Moreshwar Gopichand Barve,
Age about 31 years and resident
of Ward no.3, Ambedkar Nagar,
Kandri-Kanhan, Taluka Parsheoni,
District Nagpur. PETITIONER
.....VERSUS.....
1.
District Collector, Nagpur.
2. M/s Prakash Enterprises,
through its Proprietor,
Shailesh Nandkishore Zende,
resident of Ganesh nagar, Kanhan,
Post Kanhan-Pipri, Taluka Parsheoni,
District Nagpur. RESPONDENTS
Shri Shashikant Borkar, counsel for the petitioner.
Shri S.M. Ukey, Additional Government Pleader for the respondent no.1.
Shri M.R. Joharapurkar, counsel for the respondent no.2.
CORAM :SMT.VASANTI A.NAIK AND
V.M. DESHPANDE, JJ.
DATE : 5 TH MAY , 2016.
ORAL JUDGMENT (PER : SMT.VASANTI A. NAIK, J.)
RULE. Rule made returnable forthwith. The petition is heard
finally at the stage of admission with the consent of the learned counsel
for the parties.
WP 2182/16 2 Judgment
2. By this writ petition, the petitioner challenges the allotment of
the Sand Ghat at Kodamendhi-A in favour of the respondent no.2 as being
illegal and arbitrary.
3. In pursuance of a tender notice floated by the Collector,
Nagpur on 21.01.2016, the petitioner as well as the respondent no.2
sought for the allotment of the Sand Ghat at Kodamendhi-A for
excavation. The last date for submission of tenders was 04.02.2016. The
bids were liable to be opened on 05.02.2016 and they were opened in the
presence of the concerned bidders on 05.02.2016 at 6:30 p.m. The
respondent no.2 was the highest bidder. According to the petitioner,
as per the policy of the Government in the Government Resolution
dated 12.3.2016, the highest bidder is required to deposit 1/4 th of the bid
amount on the date on which the bids are opened. As per condition No.B
(3), immediately after depositing 1/4 th of the amount on the date of
opening of the bids, the highest bidder is required to furnish an
undertaking on a stamp paper of Rupees Hundred that the balance
amount would be deposited within a period of fifteen days from the date
of opening of the bids. The petitioner has challenged the allotment of the
Sand Ghat in favour of the respondent no.2 mainly on the ground that the
aforesaid conditions were not satisfied in the case of the respondent no.2
and the contract was illegally awarded in its favour.
WP 2182/16 3 Judgment
4. Shri Borkar, the learned Counsel for the petitioner, submitted
that the bids were opened on 05.02.2016 at 6:30 p.m. and the respondent
no.2 was required to deposit 1/4th of the bid amount either on 5.2.2016
or on the immediate next day i.e. 6.2.2016. It is submitted that the
respondent no.2 did not deposit 1/4th of the bid amount on 05.02.2016 or
06.02.2016. It is stated that the bid amount was Rs.13,09,111/- and
therefore, the respondent no.2 was required to deposit a sum of
Rs.3,27,278/- on 05.02.2016 or 06.02.2016. It is stated that even if the
respondent no.2 had participated in the tender process for allotment of
the Sand Ghat at Bakhari and since he was not the successful bidder
there, the only security deposit of Rs.3,00,000/- that was made by the
respondent no.2 while participating in the Bakhari tender could have
been adjusted towards the payment of Rs.3,27,278/-. It is stated that
even if it is assumed that an amount of Rs.3,00,000/- deposited by the
respondent no.2 for the Kodamendhi-A Sand Ghat was adjusted, the
respondent no.2 should have deposited Rs.27,278/- on 05.02.2016 or
06.02.2016, but the same was actually deposited by the respondent
no.2 on 08.03.2016. It is stated that as per condition No. B (3),
immediately on the opening of the bids and on making 25% deposit, the
highest bidder is required to submit an affidavit in the form of
undertaking that he would deposit the balance, 75% amount within a
period of fifteen days from the date of opening of the bids or else the
WP 2182/16 4 Judgment
1/4th amount as well as the security amount would be forfeited. It is
submitted that the respondent no.2 did not submit an affidavit-
undertaking on 05.02.2016 or 06.02.2016 but, submitted the same on
16.03.2016. It is submitted that both the mandatory conditions that are
required to be satisfied while securing the allotment of the Sand Ghat
were not satisfied in the case of the respondent no.2 but, the respondent
no.1-District Collector, for the reasons best known him, awarded the
contract in favour of the respondent no.2, despite the non-compliance of
the conditions. It is submitted that in the circumstances of the case, the
allotment of the Sand Ghat in favour of the respondent no.2 should be
cancelled.
5. Shri Ukey, the learned Additional Government Pleader
appearing on behalf of the respondent no.1-District Collector, supported
the action of the Collector. It is, however, fairly admitted by referring to
the affidavit-in-reply that though an amount of Rs.3,00,000/- was
adjusted from the security deposit that was made by the respondent no.2
while participating for Kodamendhi-A Sand Ghat, a sum of Rs.27,278/-,
that was required to be paid, was deposited by the respondent no.2 on
08.03.2016. It is also admitted that condition B(2) and B(3) of the policy
need compliance. It is submitted that the balance amount of
Rs.9,81,900/- was deposited by the respondent no.2 on 01.03.2016 and
hence, the Sand Ghat was allotted in his favour. It is submitted that
WP 2182/16 5 Judgment
since the respondent no.2 has deposited the entire amount of the bid,
the respondent no.1 allotted the Sand Ghat in favour of the respondent
no.2.
6. Shri Joharapurkar, the learned Counsel for the respondent
no.2, supported the action of the District Collector and submitted that
since the petitioner had deposited a sum of Rs.3,00,000/- as an earnest
deposit while participating in the tender process for allotment of Bakhari
Sand Ghat, the respondent no.2 wrote to the concerned Authority for
adjusting the said amount towards the 1/4th amount of bid that was
required to be deposited on 06.02.2016 for the Sand Ghat at
Kodamendhi-A. It is submitted that on 10.02.2016, the respondent no.1
informed the respondent no.2 about the acceptance of the bid of the
respondent no.2 and since the said communication was received by the
respondent no.2 on 18.02.2016, balance 75% amount was deposited by
the respondent no.2 on 01.03.2016, that is within a period of fifteen days
from the receipt of the communication, dated 10.02.2016. It is submitted
that the soft copy of the affidavit-undertaking was tendered by the
respondent no.2 at the time of participating in the tender for the Sand
Ghat at Kodamendhi-A and the hard copy of the same was supplied to the
respondent no.1 on 16.03.2016. It is stated that normally relaxation of
the terms and conditions is granted while allotment of the Sand Ghats
WP 2182/16 6 Judgment
and there is nothing wrong in the allotment of the Sand Ghat at
Kodamendhi-A in favour of the respondent no.2, in the circumstances of
the case.
7. On hearing the learned counsel for the parties and on a
perusal of the policy of the State Government dated 12.03.2013, it
appears that the Sand Ghat has been allotted in favour of the respondent
no.2 in breach of the mandatory conditions. Admittedly, the petitioner
and the respondent no.3 had applied for allotment of the Sand Ghat at
Kodamendhi-A in pursuance of the advertisement dated 21.01.2016 and
the bids were opened on 05.02.2016. As per the policy of the State
Government, specially Condition No.B(2) and (3) in the Government
Resolution dated 12.03.2013, it appears that the highest bidder is
required to deposit 25% of the amount on the date of opening of the
tender. The tender was opened on 05.02.2016 at 6.30 p.m., hence, it was
necessary for the respondent no.2, who was the highest bidder, to deposit
25% of the amount on 05.02.2016 or at least on 06.02.2016. 1/4 th of the
amount was not deposited by the respondent no.2 on 06.02.2016. Even if
the security deposit of Rs.3,00,000/- for Kodamendhi-A sand ghat is
adjusted, a sum of Rs.27,278/- was required to be deposited to complete
the amount of Rs.3,27,278/- that was required to be deposited as 1/4 th
amount of the bid. Admittedly, the amount of Rs.27,211/- was belatedly
WP 2182/16 7 Judgment
deposited by the respondent no.2 on 08.03.2016. The remaining amount
of 75%, i.e. Rs.9,81,900/- was also not deposited by the respondent no.2
within a period of fifteen days from the date of opening of the bids and
the said amount was deposited on 01.03.2016. The respondent no.2
cannot deposit the balance amount of 75% within a period of fifteen days
from the receipt of the communication issued by the Collector to the
respondent no.2 to deposit the balance amount. As per the policy of the
State Government, it is necessary for the highest bidder to deposit 25% of
the bid amount immediately after the opening of the bids and the balance
amount of 75% is required to be deposited within a period of fifteen days
from the date of opening of the bids. On a perusal of the policy of the
State Government as could be seen from Condition No.B(2) and (3), it is
clear that irrespective of the fact that the bid of the highest bidder is
accepted or not, the highest bidder is required to deposit 1/4 th of the bid
amount on the date of opening of the bids to show his bona fides. Also,
the highest bidder is required to give an undertaking on a stamp paper of
Rupees Hundred, as soon as the 1/4th of the amount is deposited on the
date of opening of the bids, that he would pay the balance amount of
75% within a period of fifteen days from the date of opening of the bids,
failing which the earnest amount as well as the 1/4 th of the amount that is
deposited by the bidder would be forfeited. In this case, neither did the
respondent no.2 deposit the amount of 25% on the date of opening of the
WP 2182/16 8 Judgment
tender on 05.02.2016 or on the next date, i.e. 06.02.2016 nor did the
respondent no.2 tender an affidavit-undertaking on a stamp paper of
Rupees Hundred immediately on the making of the deposit of 25% of the
amount that he would deposit the remaining amount within a period of
fifteen days. It is surprising that the respondent no.2 had tendered a soft
copy of the affidavit-undertaking that was sworn on 19.01.2016 while
submitting his tender. The tender notice was published on 21.01.2016
and it is surprising that even before the issuance of the tender notice, the
affidavit-undertaking was prepared by the respondent no.2 and a soft
copy of the same was tendered along with the submission of the tender.
Admittedly, the hard copy of the affidavit-undertaking dated 19.01.2016
was not tendered by the respondent no.2 to the respondent no.1 till
16.03.2016, i.e. nearly one month and ten days from the date of opening
of the bids. We find that the respondent no.1-District Collector had not
adhered to the conditions that were required to be followed while
accepting the bid of the highest bidder. Though the respondent no.2 had
not deposited 25% of the amount on 05.02.2016 or 06.02.2016 and had
also not immediately tendered an affidavit-undertaking that he would
deposit the balance amount within a period of fifteen days, the contract
was allotted in favour of the respondent no.2. Also, it is necessary to note
that the respondent no.2 did not deposit the balance 75% of the amount
within a period of fifteen days from the date of opening of the bids and
WP 2182/16 9 Judgment
the same was deposited only on 01.03.2016, i.e. twenty five days after the
opening of the bids. The procedure that was required to be followed in
terms of the policy was not followed by the respondent no.1 while
allotting the Sand Ghat at Kodamendhi-A in favour of the respondent
no.2. It is admitted by the respondent no.1 in the affidavit-in-reply that
the amount of Rs.27,111/- that would complete the 25% deposit was paid
by the respondent no.2 only on 08.03.2016 and 75% of the balance
amount was deposited by the respondent no.2 only on 01.03.2016. It is
admitted that an affidavit-undertaking as is required to be tendered
immediately after the opening of the bids, was not tendered by the
respondent no.2 to the respondent no.1-District Collector till 16.03.2016.
It appears that the affidavit-undertaking that the balance amount would
be paid within a period of fifteen days is actually submitted on
16.03.2016 after the balance amount was paid on 01.03.2016. There is
no adherence to the conditions that are required to be followed while
dealing with the allotment of the Sand Ghat. The policy of the State
Government is not followed while allotting the Sand Ghat at
Kodamendhi-A in favour of the respondent no.2. The submission made
on behalf of the respondent no.2 that normally the District Collectors
do not adhere or stick to the time table as prescribed in the policy
decision of the State Government in the Government Resolution dated
12.03.2013 is unacceptable. If an act is required to be performed in a
WP 2182/16 10 Judgment
particular manner, the same should be performed only in the manner
prescribed, specially when the condition is mandatory.
8. Hence, for the reasons aforesaid, the writ petition is allowed.
The order of allotment of the Sand Ghat of Kodamendhi-A in favour of
the respondent no.2 is hereby quashed and set aside.
Rule is made absolute in the aforesaid terms with no order as
to costs.
JUDGE JUDGE
APTE
