Bombay High Court
Siddhivinayak Bachat Gat ... vs The State Of Maha. Thr. Principal ... on 5 July, 2017
Bench: Prasanna B. Varale
1 wp2718.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2718 OF 2017
Siddhivinayak Bachat Gat Mahasangh,
through its Secretary Sheelatai w/o
Vijayrao Mohod, aged about 53 years,
Occupation Social Work, having its
office at Joshi Market, Behind Rajapeth
Police Station, Amravati, Tahsil and
District Amravati. ... PETITIONER
VERSUS
1. The State of Maharashtra through its
Principal Secretary, Woman and Child
Development Department, Government
of Maharashtra, Mantralaya, Mumbai.
2. The Commissioner, Integrated Child
Development Services Scheme,
Maharashtra State, Raigad Bhawan
(Rear Wing), First Floor, CBD, Belapur,
New Mumbai - 400 614.
3. The Collector, Amravati and President,
District Level Food Committee,
Amravati Collectorate, Amravati.
4. The Deputy Chief Executive Officer
(Child Welfare), Zilla Parishad,
Amravati, Tahsil and District Amravati.
5. M/s Venkateshwar Mahila Audyogik
Sahakari Sanstha, Udyog Bhavan,
Shop Nos.67 and 68, 1st Floor, Udgir
District Latur through its Secretary. ... RESPONDENTS
....
Shri M.G. Bhangde, Senior Advocate with Shri V.V. Bhangde, Advocate for the
petitioner.
Shri J.Y. Ghurde, Assistant Government Pleader for respondent Nos.1 to 3.
Shri Shrikant Saoji, Advocate for respondent No.4.
Shri Akshay Naik, Advocate for respondent No.5.
....
::: Uploaded on - 05/08/2017 ::: Downloaded on - 28/08/2017 09:08:17 :::
2 wp2718.17
CORAM : PRASANNA B. VARALE AND
M.G. GIRATKAR, JJ.
DATED : 05TH JULY, 2017.
ORAL JUDGMENT : (Per Prasanna B. Varale, J.)
Rule. Rule made returnable forthwith. Heard finally with the
consent of the learned Counsel for the parties.
2. By way of present petition, the petitioner challenges the order
dated 25.04.2017 passed by respondent No.4 as well as the order dated
29.04.2017 passed by respondent No.2. These orders relate to the supply of
Take Home Ration (hereinafter referred as "THR" for the sake of brevity).
3. The petitioner is an association of the various Bachat Gats of
Women in Amravati district. It is stated in the petition that the main
objective of the petitioner association is to promote association of ladies
small savings groups in Amravati district. It is submitted that the petitioner
has been granted license under Food Safety and Standards Act, 2006 and the
same is valid up to 05.08.2017. The petitioner is also registered for possessing
and supply of cereal based supplementary foods and the certificate is issued
to the petitioner for the said purpose and the same is valid up to 31.07.2017.
4. Shri Bhangde, the learned Senior Counsel submits that an
advertisement was published in newspaper inviting the applications for
supply of THR and the petitioner, in response to the advertisement,
3 wp2718.17
submitted applications i.e. 13 applications for 13 projects. The learned
Senior Counsel invites our attention to a communication dated 09.01.2014
placed on record at Annexure-2. The learned Senior Counsel submits that in
view of the order passed by the Hon'ble Apex Court in Writ Petition 196 of
2001, the directions were issued. It was stated in the communication that by
compliance of the necessary procedure, the applications were invited and on
scrutiny of these applications, the Women Self Help Groups were finalized
and they were granted the supply of THR. The period of the contract with
these three Self Help Groups was till the end of June, 2013. It was also stated
that in view of the directions of the Apex Court, the period was extended and
the District Collector was directed to take decision in respect of relaxation of
conditions while granting the allotment of THR to the Self Help Groups. Shri
Bhangde, the learned Senior Counsel, by inviting our attention to a
communication dated 04.03.2014 placed on record issued by respondent
No.4 to the petitioner, submits that the petitioner was selected under the
scheme of THR. The petitioner was directed to cater the THR scheme at the
places namely Bhatkuli, Nandgaon Khandeshwar, Chandur Railway,
Dhamangaon Railway, Daryapur and Morshi. The petitioner was directed to
comply with certain conditions as stated in communications dated
04.03.2014 and 26.06.2014. Shri Bhangde, the learned Senior Counsel
submits that an agreement was executed between the petitioner and the
Member-Secretary i.e. respondent No.3. He then submits that even the said
agreement refers to the places namely Bhatkuli, Nandgaon Khandeshwar,
Chandur Railway, Dhamangaon Railway, Daryapur, Morshi and Amravati.
The learned Senior Counsel then submits that as per the terms of the
4 wp2718.17
agreement, the finally selected Self Help Group was to provide uninterrupted
supply of THR from the date of their selection up to 36 months. Shri
Bhangde, the learned Senior Counsel submits that the agreement executed
between the parties was of 30.06.2014. As such, the petitioner was granted
period of 36 months i.e. till 30.06.2017 for supply of THR.
5. Shri Bhangde, the learned Senior Counsel for the petitioner then
invites our attention to a communication dated 04.07.2014 issued by
respondent No.4 wherein a reference was made to the places namely,
Bhatkuli, Nandgaon Khandeshwar, Chandur Railway, Dhamangaon Railway,
Daryapur and Morshi wherein the scheme of THR was to be implemented.
The learned Senior Counsel submits that on 26.02.2015, it was
communicated to the petitioner that a complaint was received alleging
unequal distribution and more particularly against the petitioner that by
breach of terms of tender condition, the petitioner was allotted more places
than its entitlement. It was further informed to the petitioner that as the
petitioner association operates in Amravati district, the allotment of Bhatkuli
project is retained with the petitioner; whereas the allotment to five other
projects at Nandgaon Khandeshwar, Chandur Railway, Dhamangaon
Railway, Morshi and Daryapur was withdrawn and it was informed that the
petitioner would be entitled for the supply at those places from the month of
April, 2015. It was submitted that as per the policy, each Self Group was to be
allotted one project of supply of THR. The petitioner association was treated
as one Self Group and one project was retained with the petitioner; whereas
the allotment in respect of other five projects was withdrawn. This ground
5 wp2718.17
was reiterated in communication dated 16.03.2015. Shri Bhangde, the
learned Senior Counsel then invites our attention to an order passed by the
Division Bench of this Court. He submits that the decision was challenged
before this Court and invites our attention to the order of this Court dated
08th April, 2015 in Writ Petition No. 1657 of 2015 and Civil Application No. 722
of 2015. It was submitted that by observing that no opportunity of hearing
was granted to the petitioner and this Court by further observing that the
interest of justice can be met with by directing respondent No.2 to extend the
opportunity of hearing to the petitioner, partly allowed the petition and
disposed it of.
6. On perusal of the material, it reveals that in view of the order
passed by this Court, an opportunity of hearing was granted to the petitioner
and by order dated 26.05.2015, the respondent No.2 cancelled the allotment
for the places namely Bhatkuli, Nandgaon Khandeshwar, Chandur Railway,
Dhamangaon Railway, Daryapur, Morshi and Achalpur which were earlier
granted in favour of the petitioner. The respondent No.2 found that the
petitioner, by submitting false documents, sought the orders of allotment. As
the petitioner committed criminal breach of trust and fraud, the petitioner
was directed to be placed in black list and black listed for the period of five
years. The order of the respondent No.2 is again the subject matter of
challenge in this Court in Writ Petition No. 3717 of 2015. A statement was
made before this Court that order of black listing the petitioner was
withdrawn and the communication about it would be served upon the
petitioner shortly. It was stated by the learned Associate Advocate General
6 wp2718.17
that the process of the finalization of fresh tenders was in offing. The learned
Senior Counsel for the petitioner prayed for continuation of the interim
arrangement made by the Court. He invites our attention to the order of this
Court dated September 16, 2015. It was submitted that in view of the interim
order, the authorities were issuing orders in favour of the petitioner on
monthly basis till 30.04.2017.
7. Shri Bhangde, the learned Senior Counsel vehemently submits
that in spite of the earlier allotment in favour of the petitioner and in spite of
an agreement executed between the parties and in spite of the interim order
passed by this Court which was continued till 30.04.2017, the respondent/
authorities passed the orders dated 25.04.2017 and 29.04.2017. The
submission of the learned Senior Counsel is that the order passed against the
petitioner is in breach of condition 14 of the contract. He then submits that
in view of communication dated 21.04.2017, the petitioner could not have
been deprived from supply as in communication dated 21.04.2017, clause (4)
states that there shall not be disturbance in the supply in favour of those
successful bidders in whose favour the orders were passed and who have not
completed three years on 30th April, 2017 from the first order. Shri Bhangde,
the learned Senior Counsel submits that even the State Government in reply
accepts the position that the monthly supply orders were issued in favour of
the petitioner and the last communication in favour of the petitioner was
issued in the month of April, 2017. The learned Senior Counsel then submits
that as the period of terms of contract would expire on 31st July, 2017, the
petitioner be granted the continuity of supply. Shri Bhangde, the learned
7 wp2718.17
Senior Counsel for the petitioner, in support of his submission, places heavy
reliance on the judgment of the Apex Court in the case of State of Madhya
Pradesh .v. Narmada Bachao Andolan and another (reported in 2011(7)
SCC, 639).
8. Shri Ghurde, the learned AGP supports the order impugned in the
petition and submits that the action against the petitioner is in view of the
Apex Court's order. He further submits that the allotment in favour of the
petitioner itself was cancelled and as such there is no reason for continuation
of supply in favour of the petitioner. The learned AGP submits that any
direction by the State Government permitting the petitioner to continue with
the supply would be in breach of the Apex Court's order.
9. Shri Naik, the learned Counsel for respondent No.5 vehemently
submits that the claim of the petitioner is wholly on an erroneous
assumption and presumption and further submits that as the State cancelled
the order which was passed in favour of the petitioner and the petitioner
nenver challenged that cancellation order, the petitioner could not claim the
continuation merely on assumption and presumption. Shri Naik, the
learned Counsel submits that the interim order passed by this Court was
subject to finalization of the tender and the petitioner cannot take benefit of
an additional interim order as there is no right accrued in favour of the
petitioner. The learned Counsel submits that by communication dated
26.02.2015, it was specifically communicated to the petitioner that except
Bhatkuli, the order granted in favour of the petitioner for rest of five places
8 wp2718.17
namely Nandgaon Khandeshwar, Chandur Railway, Dhamangaon Railway,
Morshi and Daryapur was cancelled. This order was challenged on the
ground of breach of principle of natural justice. Accordingly, the petitioner
was heard and a detailed order was passed by the Commissioner, the
respondent No.2. Shri Naik, the learned Counsel for the respondent No.5
submits that the petitioner only challenged the order in respect of placing
the petitioner in black list and holding it unqualified for five years. As there
was no challenge to the ultimate order of cancellation, the petitioner cannot
take benefit of the interim order passed by this Court.
10. Shri Naik, the learned Counsel for respondent No.5 submits that
in the interim order dated September 16, 2015, the statement of learned
Associate Advocate General is referred to and the order noway permits the
petitioner for continuation of the supply in respect of the places namely
Dhamangaon Railway and Chandur Railway. It is also the submission of Shri
Naik, the learned Counsel that this Court by order dated September 16, 2015
made it clear that the interim order would be in operation till fresh tender
process is finalized. It is also the submission of Shri Naik that as soon as the
fresh tender process is finalized, the interim order passed by this Court
ceases to operate. The learned Counsel then submits that insofar as the
blocks at Chandur Railway and Dhamangaon Railway are concerned, in the
month of June, 2016, the work was issued in favour of Gayatri Mahila Bachat
Gat. In July, 2016, Chandur Railway and Dhamangaon Railway blocks were
given to the petitioner and Morshi, Nandgaon Khandeshwar and Daryapur
blocks were allotted to Gayatri Mahila Bachat Gat. Subsequently,
9 wp2718.17
Dhamangaon Railway and Chandur Railway blocks were withdrawn from the
petitioner and they were allotted in favour of respondent No.5 who were
selected in fresh tender process. Shri Naik, the learned Counsel for
respondent No.5 submits that as the respondent No.5 was selected in the
fresh tender process and the two blocks of Dhamangaon Railway and
Chandur Railway were allotted to respondent No.5, the respondent/
authorities committed no error in allotting the work to respondent No.5.
Shri Naik submits that even as per the terms of contract any right accrued in
favour of the petitioner would last at the most up to 30.06.2017 and thereafter
the petitioner could not claim the order of allotment on any count or on any
ground. It is submitted that the case of the petitioner is wholly
misconceived. The learned Counsel for respondent No.5 then invites our
attention to the judgment and order passed by the Division Bench of this
Court at Aurangabad Bench dated 11.07.2017. The order of the High Court
was the subject matter before the Hon'ble Apex Court. An interim order was
passed by the Hon'ble Apex Court. Shri Naik, the learned Counsel submits
that the Apex Court then modified the interim order and invites our attention
to the observations of the Apex Court which reads thus :-
"As we have not permitted the contracts which have
elapsed with efflux of time in those areas, the State of
Maharashtra can allow the selectees tgo operate on pro rata
basis. Needless to say, the present order is passed subject to final
adjudication in the matter. No earlier contract of anyone shall
be extended and if any officer extends the same, he shall be liable
for contempt of this Court. If any contract has been extended
after the licence period is over, the same shall come to an end by
10 wp2718.17
30.4.2017.
As undertaken by learned counsel for the State, in
case the contract which will be operative by virtue of the ad
interim arrangement to distribute on pro rata basis if eventually
nullified, the State shall cancel the tendering process and be
guided by the directions of this Court.
Let the matter be listed on 02.08.2017."
11. Shri Naik, the learned Counsel for respondent No.5 submits that
the apex Court by modification of the order, permitted the new selectees to
operate and submits that the communication dated 21.04.2017 on which a
heavy reliance was placed by the learned Counsel for the petitioner was the
subject matter to an interim order passed by the Apex Court. The learned
Counsel then by inviting our attention to the communication dated
24.04.2017 issued by respondent No.4 to respondent No.2 and a chart
annexed to the communication submitted that the petitioner was permitted
to operate any two blocks i.e. Chandur Railway and Dhamangaon Railway
subject to finalization of the new tenders and subject to interim order passed
by the Division Bench of this Court dated 05th May, 2016.
12. After hearing the learned Counsel appearing on behalf of the
respective parties and on going through the material placed on record, we
find considerable merit in the submission of Shri Naik, the learned Counsel
for respondent No.5. The material placed on record clearly shows that the
allotment in favour of the petitioner in respect of five blocks was cancelled.
11 wp2718.17
The cancellation order confirmed by respondent No.2 after giving an
opportunity of hearing to the petitioner was never challenged by the
petitioner. The challenge before this Court was in respect of black listing the
petitioner. The interim orders passed by this Court were subject to
finalization of the tender process in view of the interim order passed by the
Hon'ble Apex Court. The interim order passed by the Apex Court was
subsequently modified. It is not in dispute that in the process of fresh
finalization of the tenders, the respondent No.5 was the successful tenderer
and the blocks were allotted in favour of respondent No.5. The petitioner
cannot claim the benefits on the basis of same interim order which was
subject to finalization of tender process. It is also not in dispute that the
tender process was finalized and the petitioner chose not to participate in
the fresh tender process. The ground taken by the petitioner that it did not
participate in the tender process on the ground that the tender conditions
were changed with an oblique motive cannot be accepted.
13. Considering all these grounds, in our opinion, the petition is
devoid of merits and the same deserves to be dismissed. In the result, the
writ petition is accordingly dismissed.
Rule is accordingly discharged.
JUDGE JUDGE
*rrg.
