Bombay High Court
International Society For Road ... vs The Principal Secretary & Others on 17 July, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 2005 OF 2004.
International Society for Road Transport
& Safety, registered under the
Societies Registration Act,
through its Secretary, Tushar Mandlekar
having office at 20, NIT Complex, Hill
Road, Gandhi Nagar, Nagpur. ....PETITIONER
VERSUS
1. The Principal Secretary,
Maharashtra State, Mantralaya,
Mumbai.
2. The Secretary,
Ministry of Transport, Mantralaya,
Mumbai.
3. The Transport Commissioner,
New Administrative Building,
Near Ambedkar Garden,
Bandra (East), Mumbai.
4. The Secretary,
Ministry of Urban Development,
Mantralaya, Mumbai.
5. The Municipal Commissioner,
NMC, Civil Lines, Nagpur. ....RESPONDENTS
.
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Mini Truck Malak Vahatuk
Sangh, Mokshadhan road,
Vijay Talkies Square, Nagpur
through its President
Shri Gangadharrao Bhusari. ....INTERVENOR.
-----------------------------------
Mr. T.D. Mandlekar, Secretary of Petitioner - In-person.
Mr. P.S. Tembhare, Asstt. Govt. Pleader for Respondent No.1 to 4.
Mr. S.M. Puranik, Advocate for Respondent No.5.
Mr. Deshpande, Advocate h/f. Shri A. Parchure, Advocate for Intervenor.
------------------------------------
CORAM : B. P. DHARMADHIKARI
AND ROHIT B. DEO, JJ.
Date of Reserving the Judgment : 09.06.2017
Date of Pronouncement : 17.07.2017
JUDGMENT. (Per B.P. Dharmadhikari, J)
Cognizance of this Writ Petition has been taken in public interest.
Grievance made by the petitioner - a Registered Society, is in relation of
carrying capacity of water tankers employed by respondent no.5 - Municipal
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Commissioner, Nagpur Municipal Corporation for supplying waters to needy
citizen. Contention is, contractors who made their tankers available and
charged for it, manipulated unladen weight so as to qualify for participation
in the tender process and also to claim that requisite quantity of water has
been carried by them per trip. Petitioner claims that the manipulation has
been done by the Authorities/Officers of the Regional Transport office at
Nagpur and it has been conveniently overlooked by respondent no.5.
2. Prayers in the petition are to direct respondent to present a
concrete and comprehensive plan for water transportation for next ten years
in Nagpur; to direct them to call for fresh tenders; to black list contractors
who manipulated carrying capacity and to direct respondents to stop
payment of such contractors. There is also a prayer to recover excess
amount paid to such contractors. Departmental Enquiry against government
servants involved in the matter, including detention of such vehicles and
other appropriate action, has also been sought for.
3. We have heard Shri T. Mandlekar, Secretary of petitioner -
Association, in-person; Shri P.S. Tembhare, learned A.G.P. for respondent
nos. 1 to 4, Shri S.M. Puranik, learned Counsel for respondent no.5. Shri
Deshpande, learned Counsel holding for Shri A. Parchure, Advocate has
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represented the cause of intervenor.
4. Petitioner has submitted that the shell capacity of a tanker is
directly co-related to its load carrying capacity, as per clause no.6 of the
tender condition. The contractors manipulated the unladen weight so as to
qualify for carrying particular quantity of water as given against the shell
capacity. The shell capacity was certified by the competent authority,
specified by the State Government. As per conditions of contract,
particularly Clause 8, on breach of terms and conditions of contract, the
Nagpur Municipal Corporation was competent to terminate the same and to
forfeit the security deposit.
5. To demonstrate how the unladen weight has been manipulated, he
invites attention to Annexure-B with the writ Petition. He points out that
there unladen weight of a tanker bearing No. MH31-W-3250, registered on
15.04.1997, is shown as 2950 kgs. w.e.f. 19.11.2003. Laden weight has
been increased to 6950 kgs. thereby leaving margin of 4000 kgs., which
supports shell capacity of 4000 liters. Unladen weight as on 12.10.2000 was
2430 kgs. He submits that this can also be seen in relation to tanker bearing
No. MH 32/M/7872, registered in 1996. Its' registration axle weight was
2800 kgs. on front side and 4200 kgs. on rear axle. Its' unladen weight was
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2755 kgs. and registration laden weight was 6950 kgs. Changed unladen
weight was earlier 3175 kgs., 1485 kgs. on 01.08.2003 and 2755 on
31.04.2004. He submits that these instances can be multiplied. This change
in unladen weight in almost 75 such tankers provided to Nagpur Municipal
Corporation was illegal manipulation, contrary to Section 52 of the Motor
Vehicles Act. Because of this change, more quantity of water has been
shown to be carried and it has resulted in loss to the Corporation, and the
powers available under Motor Vehicles Act have been abused.
6. Learned A.G.P. appearing on behalf of respondent State has relied
upon reply-affidavit. He has pointed out that after appropriate enquiry, as
change in unladen weight was found to be effected illegally, three of the
officers were proceeded against. Proper punishment has been inflicted
upon two officers after departmental enquiry, while the third officer (Shri
Janbandhu), expired during the pendency of the proceedings. Learned
A.G.P. submits that no loss as such has been caused to public in the matter
and due to passage of time and subsequent policies evolved by the Nagpur
Municipal Corporation, the challenge is rendered infructuous.
7. Learned Counsel appearing on behalf of the Corporation on the
other hand states that the Nagpur Municipal Corporation has got no control
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on the grievance about laden or unladen weight. The document given by
the Regional Transport Office were relied upon by the Corporation. He
submits that independent capacity of a tanker fitted on a vehicle was also
certified by the competent authority and water has been carried in that
water tanker. Therefore, specified quantity of water has always been carried
and hence, the dispute about laden or unladen weight is irrelevant in
present circumstances. He explains that letters issued on 02.04.2004 by the
officers of the Corporation to some contractors appear to be a knee jerk
reaction.
8. He further states that because of this petition and orders therein,
payments are not released to contractors and some of those contractors are
before this Court seeking leave to intervene. He submits that necessary
corrective measures have been taken and petitioner have not raised any
challenge to subsequent policy. He therefore, submits that present petition
needs to be disposed of as infructuous.
9. Learned Counsel appearing on behalf of the intervenor states that
the controversy between laden and unladen weight has got no bearing on
the contract to transport water given to intervenor. The capacity of a water
tank fitted on tanker is not in dispute and as record shows transportation of
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requisite quantity of water, payment due to petitioners cannot be withheld.
He adds that change in unladen weight has been taken note of after
following prescribed procedure and applicant was not party to any
departmental enquiry, and was not heard by the regional transport
authorities while inflicting any punishment on any officer. He therefore,
prays for dismissal of the Writ Petition.
10. Petition with above prayers came to be filed on 29.04.2014, and
was listed before the Vacation Judge on 11.05.2004. On that day, notice
was issued and the same was made returnable on 14.05.2004. On
14.05.2004, respondents were given time to file affidavit. Court on that day
wanted information about the preventive and precautionary measures taken
by the Nagpur Municipal Corporation to avoid fictitious recording of drawl
and supply of water by the transport contractor. Respondent no.5 sought
time. This Court then directed respondent not to effect payment to
transporters. Matter was adjourned to 21.05.2004 for the purpose of placing
on record appropriate statements and affidavits. It was also directed that
the matter should appear before the Regular Court on 15.06.2004. On
15.06.2004, Corporation sought time to place on record detailed affidavit
disclosing checks carried out. On 03.09.2004, again it sought time to file
affidavit. On 26.10.2004 time was given to file replies to rejoinder. On
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12.01.2005, it became clear that daily report about transportation of water
could not be supplied, but, a monthly report was supplied to petitioner. This
Court expected petitioner to verify report and documents and appraise the
court about further course of action. Respondent no.5 Municipal
Corporation was directed to furnish report of Additional Municipal
Commissioner who conducted enquiry into the matter and about steps taken
by the Executive Engineer. Court expressed that it proposed to examine the
matter and decide line of action to be adopted after receipt of the enquiry
report. The matter was then taken up on 27.01.2005 and court noted that
the Municipal Commissioner expected then Additional Municipal
Commissioner Kunal Kumar to examine the report and prepare final report.
This court expected the Additional Commissioner to identify the officials of
the Water Works Department concerned with the allotment of contract and
supervision of distribution of water by tankers to various wards in the city.
On 16.02.2005, Municipal Commissioner was given time to go through the
report submitted by the Additional Municipal Commissioner. On
30.08.2005, matter came to be admitted for final hearing. Municipal
Commissioner was directed to file return on his own affidavit and he was not
to leave it at the discretion of his subordinate officer. On 24.08.2005 time of
four weeks was given to the Municipal Commissioner to file that affidavit.
On 26.09.2005 that time was extended. On 19.10.2005 again time was
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extended. Thereafter matter remained pending for final hearing. On
17.04.2006, this Court issued notice on Civil Application No.2125/2005 and
in the course of order noted submission of Corporation that no excess
payment was made to the contractors. Petitioner In-person pointed out that
infact such payments were already made and in some cases notices for
recovery were issued. This Civil Application is pending even today and is
being considered now. On 10.02.2010, this Court directed report of
departmental enquiry to be placed within a period of two weeks. On
24.02.2010 time of two weeks was given to the Regional Transport Office,
Nagpur to submit final report to the Court. On 17.06.2010 further time of
two months was given. In this background that matter has been listed for
final hearing almost after 13 years of its filing.
11. Civil Application No. 1810/2009 moved by the Mini Truck Malak
Vahatuk Sangh - Intervenor, seeks a direction to respondent Corporation to
make payment to the applicant for trips completed by it. In this application,
it is pointed out that the applicant Sangh installed water tanks with carrying
capacity of 4000 liters and necessary certificate issued by the Weights and
Measures Department of Government of Maharashtra was provided to the
Nagpur Municipal Corporation. They claim that by reducing registered
unladen weight, carrying capacity was increased and actually 4000 liters of
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water has been carried to various destinations.
In Civil Application No.2125/2004, petitioner seeks a direction to
Corporation to use its power under Clause 8 of the conditions of Contract for
tender and to terminate all transport contractors. Other directions sought
for are not to make any payment to any contractors and to recover excess
payment made since 19.10.2000. Petitioner/applicant also pray for a
direction to Transport Secretary to take departmental action against all
Inspectors. This application is also being heard along with the Writ Petition.
12. Petitioner has filed his reply to Civil Application No.1810/2009
and with it has filed various letters issued by the Corporation to transport
contractors stating that because of mischief which has surfaced, rate of
Rs.240/- per trip sanctioned to contractor would be reduced to Rs. 180/- per
trip. By other communication of same date, it has been informed that
because of rate of Rs. 240/- per trip adopted in the matter, contractors have
been paid in excess from 29.04.2001 upto a date stipulated therein. The
periods vary, but, then the Corporation has pointed out that the contractors
received excess payments and the same was to be appropriated/adjusted
towards work done after 01.04.2003. Notice issued to contractor Shri C.A.
Bihare, points out excess payment of Rs. 2,39,800/-; Notice issued to
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Prabhakar Akre, points out excess payment of Rs.73,200/-; Notice issued to
V.P. Khaparde, points out excess payment of Rs. 1,73,880/-. There are more
such notices placed on record along with the reply.
13. The respondent State of Maharashtra through its Transport
Commissioner has filed a Pursis dated 26.08.2004. Along with said pursis,
copy of report submitted by the inquiry officer and transport Deputy
Commissioner (Inspection) has been filed on the record of present
proceedings. The inquiry officer has concluded that for not taking timely
steps administrative inefficiency needed to be mentioned in service record of
the Regional Transport Officer. As Deputy Regional Transport Officer
expired and there was no loss of revenue to the department, no action was
proposed against the deceased. Inspector Shri R.J. Khobragade, Shri P.B.
Janbandhu and Shri S.B. Joshi were found guilty. Their transfer out of
Nagpur office was recommended with a direction to start departmental
inquiry. It is also observed that lack of efficiency in Shri Nete, the then
Deputy Regional Transport Officer, Nagpur may have been used by the
guilty persons and other concerned. During the pendency of the inquiry
against three inspectors, Shri Janbandhu also expired and hence, after
inquiry punishment has been inflicted on the remaining two inspectors
namely Shri Khobragade and Shri Joshi. Their increments have been
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withheld. Though there was some argument by the petitioner in-person on
the adequacy of this punishment, after 13 years we are not inclined to
examine it in this jurisdiction.
14. Respondent no.5 Nagpur Municipal Corporation has filed report
prepared by its Additional Municipal Commissioner Shri Kunal Kumar and
perused / approved by the Municipal Commissioner. This report has been
filed along with Pursis dated 16.03.2005. It is titled as 'report of re-
examination on the point of admissibility of reply submitted by the Executive
Engineer (Water Works) to the show cause notice issued by the Municipal
Commissioner.' Additional Municipal Commissioner Shri Kunal Kumar has
found explanation furnished by the Executive Engineer satisfactory and has
recommended its acceptance by the Municipal Commissioner. Municipal
Commissioner has accepted it. This report of Shri Kunal Kumar shows that
tender process was properly conducted and the contractors were asked to
submit shell capacity certificate from the competent Authority. Two
contractors did not submit that certificate, while in one case it was found
incorrect. Report therefore, observes that carrying capacity of tanker was
therefore, the same as mentioned in the work order, except in cases of three
contractors. Daily report of distribution of water, vehicle wise was also
obtained and there were adequate cross checks. The allegation that tankers
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with less capacity were employed, is found to be incorrect. The efforts made
by Shri Kunal Kumar to identify officials who were concerned with the
supervision in distribution of water in different wards was taking time as
work was executed between 23.09.2003 to 23.01.2004. Charts for other
periods were also being obtained. Period was larger and record was bulky.
Concerned Executive Engineer was in the process of compiling data, but, he
did not report any irregularity. Unladen weight of vehicle in documents
issued by the Regional Transport Office was accepted and hence the
Executive Engineer was not at fault. Services of 24 contractors were
discontinued from 16.01.2004 after receipt of intimation from RTO
regarding cancellation of registration of said vehicles. No payment was
made to these transporters from the date of engagement i.e. 23.09.2003 till
the date of termination of contract, and as such, there was no financial loss
to the Corporation. It is also reported that participation of 15 bidders in
tender process after expiry of stipulated period did not prejudicially affect
other bidders, as no work orders were issued to them.
15. Thus, this report shows that though daily record of truck wise
distribution of water was obtained, identity of officer responsible for
maintaining it or for correctness of information contained therein was to be
ascertained when Shri Kunal Kumar submitted his report to the Municipal
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Commissioner or when after its acceptance, a Pursis was filed before this
Court on 16.03.2005. But, till this day, the situation has not undergone any
change.
16. Affidavit filed by the Transport Commissioner in response to
orders dated 12.01.2005 shows that Shri Khobragade, Shri Janbandhu and
Shri Joshi were already transferred and disciplinary action against them was
started. Shri R.J. Khobragade, Inspector filed first information report with
Sitabuldi Police Station under Section 420, 468, 471 and 34 of Indian Penal
Code on 13.04.2004 vide No. 162/2004. Department had got sanction for
prosecuting inspector Shri Khobragade and on that date, the matter was
pending with State Government. Involvement of Shri M.M. Nete also is
pointed out. It is further stated that it was illegal on his part to change the
order of cancellation of registration of the vehicles to suspension of permit
and an appeal was to be filed under Section 57 of the Motor Vehicles Act to
the Transport Commissioner.
17. On 10.11.2005 respondent no.5 Corporation has filed its return.
In this return it has pointed out that the High Court had in Criminal Writ
Petition No.147/2004 issued some directions and detailed investigation was
already carried out by the Crime Branch of Police Department. It's
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paragraph no.9 read as under :
"9. It is submitted that this respondent has
already filed on record voluminous data which would
demonstrate that there is no instance of execess
payment being made to any of the erring transporters.
Similarly, it would be demonstrated that in fact, on
account of the measures undertaken by this respondent,
the expenditure incurred on this exercise has
substantially gone down by Rs. 76,88,080/-. It is
submitted that in view of the various documentary and
other evidence on record, there is no substance in the
petitioner's allegation that there has been large scale
corruption in the process of water transportation in the
Corporation. It is submitted that the petitioner has
sought inspection of the relevant records of this
respondent and on his request a lot of data has been
made available to him in connection to the work of
water transportation in the NMC. However, the
petitioner has been unable to substantiate any of his
charges and the sweeping allegations made by him
against this respondent and its officers. It is submitted
that pursuant to directions issued by this Hon'ble Court
in Criminal Writ Petition No.147 of 2004, detailed
investigation has already been carried out by the Crime
Branch of the Police Department and not even an iota
of truth has been found in the allegations levelled
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against this respondent and its officers. As such, it is
submitted that the petitioner has resorted to a roving
enquiry through this petition, which is noting but a
gross abuse of the process of law. It is submitted that
the instant petition being merit-less, it may kindly be
dismissed with costs."
18. The consideration above, therefore, shows inconsistent stand of
Nagpur Municipal Corporation. The rate of Rs. 240/- per trip was brought
down to Rs.180/- per trip and notices for recovery were also served upon
certain contractors, pointing out release of excess payment. We cannot
accept this to be a knee jerk reaction. If responsible officers of Respondent
No. 5 - Corporation are adopting such measures only as an eye wash
without verifying records, a more severe cognizance of their conduct needs
to be taken. The portion reproduced supra from return of Corporation in
Criminal Writ Petition shows a statement that because of measures
undertaken by it, expenditure incurred has been reduced by Rs.76,88,088/-.
This claim again speaks volumes about the efficiency of administration.
Inability to fix responsibility on any individual reflects lack of transparency.
When we are looking at the matter after more than 13 years, not filing any
affidavit by Corporation explaining the situation emerging after
completing examination of records, said records being examined by the
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Executive Engineer may not have been preserved at all. Had records been
preserved and individual responsibility is fixed, Respondent No. 5 would
have definitely placed suitable affidavit on record to clear its image. It is
apparent that after the matter was admitted, neither the petitioner nor
Respondent No. 5 has attempted to obtain orders from this Court in public
interest to induce more transparency in the question of transport of water
through Tankers.
19. We may here point out that very recently again in a Writ Petition
No.757/2017, effort allegedly made by respondent No. 5 to allot tanker trips
to transporters who did not qualify in tender, have been pointed out to this
Court. The contempt of interim order passed therein has also been alleged
and this Court has issued notice against the then Municipal Commissioner,
who in the meanwhile was transferred out of Nagpur. For long time
Municipal Commissioner did not file any affidavit. Contempt has been
lodged against the present Municipal Commissioner also. All this, therefore,
paints a very unhappy picture.
20. In any democracy, the officers concerned must maintain records to
safeguard transparency and those records should immediately indicate the
person responsible for a particular task at a particular moment. Here,
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because of inability to file proper affidavits on the part of Respondent No. 5,
absence of such records can very well be inferred.
21. The Tankers collect water from overhead water tanks located in
various parts of Nagpur City. Tanker reporting at that overhead water tank,
therefore, can be taken note of and a measured quantity of water can then
be released by a person in-charge of that overhead water tank to such
transporter. After release of water, the receipt of transporter can be
obtained and when he delivers water at a particular place, transporter can
obtain receipt therefor from some responsible person. Thus, the receipts
generated for each delivery can be deposited by him in Corporation office
before claiming water on next day. The necessary registers can be
maintained at overhead water tanks and also at delivery points. Looking to
trips on an average required per day in a particular area, next day's schedule
and delivery program can be chalked out. We cannot in this jurisdiction
delve more into these administrative facets and it is for the competent
officers of the Corporation to work it out.
22. In present matter we find that ordering any inquiry into the
alleged lapses may not result in any fruitful purpose. It may only turn out to
be waste of public time and money. The respondent Corporation has
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already reduced rate per trip and may have also effected recovery from the
transporters who have received excess payment. It needs to be noted that
the transporters who have changed unladen weight, first received an order
of cancellation of registration of their vehicle. It was thereafter substituted
by an order of suspension and then respondent No. 5 proceeded to re-allot
work to these transporters. Officers found involved in malpractice are
already punished in departmental enquiry. However, respondent No. 5 did
not take any steps to terminate their contracts or to blacklist them. Few
transporters are before this Court seeking direction to the Corporation to
release their payments. The other transporters have remained satisfied with
whatever amount they received.
23. As several disputed questions arise, we leave it to the Transporters
to file appropriate proceedings before the Civil Court, if they claim that they
are still entitled to receive any amount from Respondent No. 5 -
Corporation. Similarly, if the Municipal Commissioner of Respondent No. 5
is satisfied that records with him support filing of a Civil Suit to recover
alleged excess amount paid to transporters, the Municipal Commissioner can
also file suits for recovery thereof. Needless to mention that if such suits are
filed, the concerned Civil Court shall be free to take cognizance thereof as
per law. If any loss is already suffered by respondent no.5, respondent nos. 1
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and 4 can file appropriate recovery cases against guilty officers of Nagpur
Municipal Corporation as per law. These directions be comlied within next
four months.
24. In present situation, as cognizance of the matter was taken in
public interest and neither the petitioner nor respondent No. 5 have shown
necessary readiness and willingness to assist the Court in the matter, with
above directions and caution to respondent no.5 that if such conduct is
repeated, serious note thereof will be taken by this Court, we dispose of the
present writ petition. Rule is made absolute accordingly. However, in the
facts and circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE
Rgd.
