Bombay High Court
Jay Matadi Mall Vahatuk Co-Op. ... vs Maharashtra State Warehousing ... on 10 July, 2017
Bench: B.P. Dharmadhikari
wp158.17 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 158 OF 2017
Jay Matadi Mall Vahatuk Co-operative
Society Limited, Jalgaon, having its
office at 125, Old Bhikamchand Jain
Market, Jalgaon, through its Secretary
namely Shri Vijay s/o Ramchandra
Pande, aged about 46 years, r/o 179,
Shivaji Nagar, Jalgaon. ... PETITIONER
Versus
1. Maharashtra State Warehousing
Corporation, having its office at
583/B, Market Yard, Gultekadi,
Pune-411 037, through its
Chairman and Managing Director.
2. The Stock Superintendent,
Maharashtra State Warehousing
Corporation, Lohara, Dist. Yavatmal.
3. Every Where Transport Organization
Pvt. Ltd., having its office at 513,
Central Facility Building, 6th Floor,
Fruit Market Complex, Sector-19,
Vashi, Navi Mumbai 400 705 through
its Director. ... RESPONDENT
Shri N.B. Kalwaghe, Advocate for the petitioner.
Shri N.R. Saboo, Advocate for respondent Nos. 1 & 2.
Shri C.V. Kale, Advocate for respondent No. 3.
.....
CORAM : B.P. DHARMADHIKARI &
ROHIT B. DEO, JJ.
JULY 10, 2017.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Heard finally Shri N.B. Kalwaghe, learned counsel
for the petitioner, Shri N.R. Saboo, learned counsel for
respondent Nos. 1 & 2 and Shri C.V. Kale, learned counsel for
respondent No. 3, by issuing Rule and making it returnable
forthwith by their consent.
2. The petitioner - second lowest in tender process,
floated by respondent No. 1, is before this Court pointing out
that the award of contract of handling and transport of food
grains, fertilizers, seeds etc. to Respondent No. 3 by
Respondent No. 1, is arbitrary and malafide. The short
submission is, respondent No. 3 was disqualified as it is already
blacklisted by the earlier employer viz., Rashtriya Chemicals
and Fertilizers Limited (R.C.F.L.) from 07.11.2016.
Respondent No. 3 got work order on 21.11.2016.
3. This Court has issued notice on 09.01.2017 and
emphasized that the respondents must file their replies and
prayer for interim relief would be considered on the next date
of hearing. On 31.01.2017, after hearing all counsel, this Court
found that the question whether the word "holiday" means
blacklisting / debarring was involved in the matter. On that
day, this Court directed Respondent Nos. 1 & 2, not to make
any payment to respondent No. 3 until further orders of this
Court in the matter. The parties were permitted to file
additional affidavits/ replies.
4. The basic facts are not in dispute. As per e-tender
notice issued for the year 2016 to 2018, the petitioner as also
Respondent No. 3 have participated. Clause 15 of Terms and
Conditions specifically stipulates that the tenderers who have
been blacklisted or otherwise debarred by F.C.I. or any
department of Central or State Government or any other Public
Sector Undertaking, is ineligible during the period of such
blacklisting or for a period of five years from the date of
blacklisting/ debarment, whichever is earlier. The
disqualification, therefore, is enforced from the date of order of
blacklisting/ debarring such participant.
5. Rashtriya Chemicals and Fertilizers Limited have on
05.12.2016 pointed out that Respondent No. 3 has been
penalized and was put on "holiday" for a period of one year
with effect from 07.11.2016 to 06.11.2017. This was already
informed by Rashtriya Chemicals and Fertilizers Limited to
Respondent No. 3 on 10.11.2016. Later on, for the reasons
unknown, this date of commencement i.e. "with effect from
07.11.2016" has been shifted to "19.12.2016". Thus holiday
commenced on 19.12.2016.
6. Respondent No. 3 did not point out this "holiday" to
Respondent No. 1. Respondent No. 1 claims that it got its
knowledge belatedly i.e. after tender process was over.
Hearing was given to all including the petitioner and
Respondent No. 1 felt that putting Respondent No. 3 on
"holiday" did not tantamount to blacklisting/ debarment,
therefore, the work order already issued to Respondent No. 3
was continued.
7. Shri Saboo, learned counsel for respondent Nos. 1 &
2 has submitted that Respondent No. 3 did not point out filing
of Writ Petition No. 2737 of 2016 by it at Bombay against
Rashtriya Chemicals and Fertilizers Limited and Respondent
No. 1 learnt about the nature of challenge therein only after a
copy of writ petition was made available by the petitioner.
8. Shri Kalwaghe, learned counsel for the petitioner
has strongly relied upon the said memo of writ petition to
demonstrate that Respondent No. 3 was aware that Rashtriya
Chemicals and Fertilizers Limited has blacklisted it for a period
of one year and accordingly has raised all challenges before the
Principal Seat at Bombay. In Writ Petition, everywhere the
word "disqualification" has been used.
9. According to Shri Kale, learned counsel for
respondent No. 3, the word "holiday" does not imply
blacklisting and no final decision has been taken in Writ
Petition No. 2737 of 2016. It has been withdrawn on
21.06.2017. He relies upon the decision taken by respondent
No. 1 after extending an opportunity of hearing to all parties.
He, therefore, submits that Respondent No. 1 has rightly found
that Respondent No. 3 has not been blacklisted. He further
submitted that Rashtriya Chemicals and Fertilizers Limited has
given holiday to Respondent No. 3 from 19.12.2016 onwards
and, therefore, on all relevant dates, i.e. date of opening of
technical bids or commercial bids or issuance of work order,
Respondent No. 3 was not found on "holiday" from Rashtriya
Chemicals and Fertilizers Limited. He submits that thus the
challenge raised is hyper technical in nature. He points out the
limited scope of jurisdiction available to this Court. In this
connection, he relies upon the observations of the Hon'ble Apex
Court in the case of Central Coalfields Limited & Anr. vs. SLL -
SML (Joint Venture Consortium) & Ors., reported at (2016) 8
SCC 622, particularly paragraph 43.
10. With the assistance of learned counsel, we have
perused the papers. The fact that the work order was already
issued to Respondent No. 3 is not in dispute. The present
petitioner has pointed out the order giving holiday, passed by
Rashtriya Chemicals and Fertilizers Limited, to Respondent No.
1. He has given the communication on 16.11.2016 to
Respondent No. 1. Respondent No. 1 has in the face of this
communication, on 21.11.2016 issued work order to
Respondent No. 3.
11. The order initially passed by Rashtriya Chemicals
and Fertilizers Limited put an embargo on Respondent No. 3
for a period of one year from 07.11.2016. Thus, within 10 days
thereafter, the embargo was pointed out to Respondent No. 1
by the petitioner. By said order of "Holiday", Rashtriya
Chemicals and Fertilizers Limited prohibited Respondent No. 3
from participating in any tender process with it for a period of
one year. In other words, Respondent No. 1 was compelled,
not to exercise its civil right and could/ can not offer and
participate in any tender process of Rashtriya Chemicals and
Fertilizers Limited for a period of 12 months from 07.11.2016
onwards. In Writ Petition No. 2737 of 2016, Respondent No. 3
itself has described this "Holiday" as blacklisting. Though
Respondent No. 1 claims that it extended an opportunity of
hearing, it has not considered this aspect of the matter and
efforts have only been made to justify the work order issued.
Tender process was not complete and over either on
07.11.2016 or 17.11.2016. Writ Petition No. 2737 of 2016
reveals that Rashtriya Chemicals and Fertilizers Limited had
served a show cause notice dated 04.07.2016 on Respondent
No. 3 and it was replied on 11.07.2016.
12. As the period of commencement i.e. from
07.11.2016 has been shifted to 19.12.2016 by Rashtriya
Chemicals and Fertilizers Limited, we have specifically inquired
from Respondent No. 3 whether after 07.11.2016 and up to
19.12.2016, it has participated in any tender process floated by
Rashtriya Chemicals and Fertilizers Limited. Respondent No. 3
has not given any answer to this question and has not pointed
out that during said period, Rashtriya Chemicals and Fertilizers
Limited has allowed it to participate in the tender process. If
M/s. Rashtriya Chemical Fertilizers Limited permits Respondent
No. 3 to participate in its tender process till 19.12.2016, it
follows that the petitioner could not have objected to
Respondent No. 1 entertaining tender of Respondent No. 3.
But then neither Respondent No. 1 nor Respondent No. 3 are in
a position to justify this revision in date. The dates obviously
appear to have been revised by Rashtriya Chemicals and
Fertilizers Limited to accommodate Respondent No. 3 and to
paint a picture that on the date on which he participated in the
impugned tender process, he was not under "holiday" orders.
There is no other inference possible in the matter.
13. We are aware that Rashtriya Chemicals and
Fertilizers Limited is not party before us but Respondent No. 3,
who is benefited by this revision, is party before this Court.
14. A perusal of judgment relied upon by Shri Kale,
learned counsel, particularly paragraph 43 shows that this
Court in writ jurisdiction can definitely intervene in such
matters. Merely because a blacklisted concern or concern
under "holiday" offers a lowest price, it cannot be made eligible
to compete. Here, Respondent No. 3 is found to be the lowest
bidder as Respondent No. 3 has quoted 3% below the price
quoted by the petitioner. That may be a consideration relevant
at the stage when all eligible participants have quoted their
rates. Here, a person already under a proceeding for
disqualification has attempted to pollute the process of tender
without disclosing the "holiday" order or disability suffered by
it.
15. Respondent No. 1 and its officers were duty bound
to act in terms of tender conditions after getting knowledge of
the "holiday" order. The facts supra show that they have also
avoided to discharge their obligations of not selecting a
disqualified bidder. It was obligatory for them to evaluate
import of misconduct which lead to this punishment on the
contract awarded to respondent No.3.
16. In this situation, we quash and set aside the work
order issued by Respondent No. 1 to Respondent No. 3.
Respondent No. 1 shall consider entitlement of other bidders
including the petitioner afresh as per law and issue work order
to successful bidder thereafter. This process shall be completed
within four weeks from today.
17. In this situation, we are constrained to direct the
State Government through its Chief Secretary to hold proper
inquiry into the entire affairs including the conduct of
Respondent No. 1 and its officers. We also direct that the
officers who have taken decision in present matter shall not
associate themselves with fresh decision process to be reached
by Respondent No. 1, as mentioned supra.
18. Writ Petition is thus allowed by making Rule
absolute accordingly. We direct Respondent No. 3 and
Respondent No. 1 to pay cost of Rs.5,000/- (Rs. Five thousand
only) each to the petitioner within a period of three weeks from
today.
JUDGE JUDGE
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*GS.
