Bombay High Court
Arun S/O Indrakumar Sharawane And ... vs Nagpur Municipal Corporation, ... on 25 July, 2017
Bench: B.P. Dharmadhikari
jwp757of17 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 757 OF 2017
1. Arun S/o. Indrakumar Sharawane,
Aged about : 50 years,
Occ. Business,
r/o. : Plot no. 40, Babulban,
Dist. Nagpur.
2. Vilas S/o. K. Shaniware,
Aged about 35 years,
Occ. Business,
R/o. Shastri Nagar, Dist. Nagpur
3. Suresh Sorte,
Aged about 35 yearrs,
Occ. Business,
R/o. Patansawangi,
Dist. Nagpur
4. Pramod S/o. Vitthal Kshirsagar,
Aged about 36 years,
Occ. Business,
R/o. Baba Buddhaji Nagar,
Koradi Road, Dist. Nagpur
5. Bhushan S/o. Mahadeo Ingale,
Aged about 30 years,
Occ. Business,
R/o. Netaji Nagar, Old Pardi Naka,
Dist. Nagpur
6. Ganesh S/o. Devilal Shivatri,
Aged about 40 years,
Occ. Business,
R/o. 890, Deshpande Layout,
Dist. Nagpur
7. Sunil S/o.Gangadhar Kamdi,
Aged about 40 years,
::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 01:32:02 :::
jwp757of17 2
Occ. Business,
R/o. Plot No. 3, Mahalakshmi Nagar,
Dist. Nagpur
8. Raju S/o. Ramprasad Dhakate,
Aged about 42 years,
Occ. Business,
r/o. MB Town III, Zingabai Takli,
Dist. Nagpur
9. Vikas s/o. Prabhakar Bhise,
Aged about 42 years,
Occ. Business,
R/o. Plot No. 75, Empress Mill
Colony, Rameshwari Road,
Dist. Nagpur
10.Vikesh s/o. Bomkan Shukla,
Aged about 34 years,
Occ. Business,
R/o. 72, Kamna Nagar, Old Kamptee
Road, Dist. Nagpur. ... PETITIONERS
Versus
1. Nagpur Municipal Corporation,
Having its office at Civil Lines,
Nagpur through its Municipal Commissioner.
2. The Executive engineer
Nagpur Municipal Corporation,
Behind Bole Petrol Pump,
Dharampeth, Nagpur ... RESPONDENTS
3. Shubham Kishore Bagne,
Aged 22 years, Occ. Business,
C/o. Mahadeo Shinde,
Kavelu Quarter No.111/112, Near
Nakade Kirana, Nandanvan,
Nagpur 400 009
::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 01:32:02 :::
jwp757of17 3
4. Atul Khemraj Thawre,
Aged 47 years, Occ. Business,
R/o. Plot no. 17-A,
Ayodhyanagar, Nagpur 24
5. Govind Narayanrao Kalamkar,
Aged 48 years, Occ. Business,
R/o.Devgharpura Lalganj,
Nagpur
6. Prakash Bhaurao Gorle,
Aged 51 yars, Occ. Business,
R/o. Plot no. 1475,
Vedant Sapphire, Sneh Nagar,
Gawande Layout, Nagpur
7. Rajendra Thakur,
Aged 49 years, Occ. Business,
r/o.15, Ayodhya Nagar,
Nagpur - 24. RESPONDENTS/
INTERVENERS
8. Natthuji s/o. Laxmanrao Kalmakar,
aged 53 yrs, Occ. Business,
R/o. Lalganj, Deogharpura,
Dist. Nagpur.
9. Haridas R. Parate,
Aged about 50 years,
Occ. Busines,
R/o. Dist. Nagpur
10.Shashikala R. Dhakate,
Aged about 55 years,
Occ. Business,
R/o. Dist. Nagpur
11.Dilip Annaji Kakde,
Aged about 36 years,
Occ. Business,
R/o. Dist. Nagpur.
12.Varsha w/o. Pramod Kshirsagar,
aged about 35 years,
::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 01:32:02 :::
jwp757of17 4
Occ. Business
R/o. Dist. Nagpur.
13.Krishna s/o. Shankarrao Patki,
Aged about 50 years,
Occ. Business,
R/o. Dist. Nagpur.
14.Ram S/o. Shankarrao Patki,
Aged about 48 years,
Occ. Business,
R/o. Dist. Nagpur.
15.Durgesh S/o. Ramprasad Dhakate,
Aged about 30 years,
Occ. Business,
R/o. Plot no. 63, Laxmi Royal Apartment,
Rathod Layout, Anant Nagar,Dist. Nagpur.
16.Bharti w/o. Sunil Kamdi,
Aged about 32 years,
Occ. Business,
R/o. Dist. Nagpur.
17.Sadhana w/o. Ganesh Kamdi,
Aged about years,
Occ. Business,
R/o. Dist. Nagpur.
18.Rajendra R. Bhadarkar,
Aged about 50 years,
Occ. Business,
R/o. Dist. Nagpur
19.Santosh Harinkhede,
Aged about 45 years,
Occ. Business,
R/o. Dist. Nagpur.
20 Pushpa w/o. Anil Kumbhare,
Aged about 32 years,
Occ. Business,
R/o. Dist. Nagpur.
::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 01:32:02 :::
jwp757of17 5
21.Narendra c. Paunikar,
Aged about 42 years,
Occ. Business,
R/o. Paunikar Galli, Near Railway Whouki,
Khaparkheda, Tah. Saoner,
Dist. Nagpur
22.Sunil G. Khadatkar,
Aged about 48 years,
Occ. Business,
R/o. Manish Nagar, Dist. Nagpur.
23.Nisar Ahmed Afzal Ahmad
Aged about 48 years,
Occ. Business,
R/o. Dist. Nagpur.
24.Omprakash K. Harke,
Aged about 35 years,
Occ. Business,
R/o. Khaparkheda, Dist. Nagpur.
25.Satish S/o. K. Kale,
Aged about 36 years,
Occ. Business,
R/o. Dist. Nagpur.
26.Moreshwar S/o. G. Magulkar,
Aged about 5 years,
Occ. Business,
R/o. Dist. Nagpur.
27.Rajendra S/o. R. Nalode,
aged about 40 years,
Occ. Business,
R/o. Dist. Nagpur.
28.Dnyaneshwar Metangale,
Aged about 55 years,
Occ. Business,
R/o. Dist. Nagpur.
::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 01:32:02 :::
jwp757of17 6
29.Atulesh S/o. Y. Umale,
Aged about 34 years,
Occ. Business,
R/o. Dist. Nagpur.
30.Manish s/o. D. Kalamkar,
Aged about 36 years,
Occ. Business,
R/o. Dist. Nagpur.
31.Anil s/o. Ganpatrao Kumbhare,
Aged about 42 years,
Occ. Business,
R/o. Juni Mangalwari,Dist. Nagpur.
32.Dhanraj s/o. Laxman Kalamkar,
Aged about 57 years,
Occ. Business,
R/o. Lalganj, Deogharpura,
Dist. Nagpur.
33.Madhukar s/o. N. Paunikar
Aged about 65 years,
Occ. Business,
R/o. Dist. Nagpur.
34.Sanjay s/o. A. Waghulkar,
Aged about 40 years,
Occ. Business,
R/o. Dist. Nagpur.
35.Vijay S/o. C. Paunikar,
Aged about 52 years,
Occ. Business,
R/o. Dist. Nagpur.
36.Tushar s/o. M. Paunikar
Aged about 40 years,
Occ. Business,
R/o. Dist. Nagpur.
37.Rajesh s/o. S. Ganvir,
Aged about 45 years,
::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 01:32:02 :::
jwp757of17 7
Occ. Business,
R/o. Dist. Nagpur.
38.Sarang Namdeo Wankhede,
Aged about 47 years,
Occ. Business,
R/o. Flat no. A4/01,
K.D.K. College, Nagpur.
39.Ashfaque Nasaruddin Sheikh
Aged 43 yars, Occ. Business,
r/o. Plot no.131, Pawanshakti Nagar,
Bhandewadi Rod, Wathoda, Nagpur
40 Sunil Sitaram Sonwane,
Aged 50 years, Occ. Business,
R/o. Plot no. 17, Diamond Nagar,
Ramna Maroti Bus Stop Road,
Nagpur
41.Nilesh s//o. Ramji Zade,
aged about 39 years, Occ. Business,
R/o. 57, Mahalaxmi Nagar No.2,
Manewada Road, Nagpur
42.Sangita w/o. Vivek Khaprde,
Aged about 42 years, Occ. Busines,
r/o. Plot no. 324, Chandan Nagar,
Near Ram Mandir, Nagpur.
43.Chandrashekhar s/o. Laxman Urade,
aged 40 years, Occ. Business,
r/o. Telipura, Itwari Pevtha,
Nagpur
44.Yogesh s/o. Dilip Kshirsagar,
Aged 28 years, Occ. Business,
r/o. Garad Khamb Road, Itwari,
Nagpur
45.Rohan s/o. Digambar Chinche,
aged 30 years, Occ. Business,
r/o. Tukoba Gram Bidipeth,
::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 01:32:02 :::
jwp757of17 8
Nagpur
46.Vinod s/o. Arjunrao Vairagade,
Aged about 35 years, occ. Business,
R/o. Juna Bagadganj, Bajrangdal,
Vyamshala, Nagpur
47.Ramesh Shrawanji Kalamkar,
Aged about 49 years, Occ. Business,
r/o. Lalganj, Itwari, Nagpur
48.Sushil Manoharji Nimje,
Aged about 36 years,
r/o.Mitravihar,
Kharbi Road, Nagpur
49.Rahul s/o. Sureshji Chakole,
Aged about 28 years,
R/o. Pardi,
Bhandara Road, Mahajanpura,
Nagpur. .... RESPONDENTS/
INTERVENERS
Shri. S.S. Voditel, Advocate for the petitioners.
Shri. A.M. Quazi, Advocate for the respondents.
.....
CORAM : B.P. DHARMADHIKARI &
ROHIT B. DEO, JJ.
JULY 25, 2017.
ORAL JUDGMENT : (PER B.P.DHARMADHIKARI, J.)
Heard finally by issuing Rule and making it returnable
forthwith by consent of parties.
2 By this petition filed under Article 226 of Constitution of
India, 10 petitioners seek direction to respondent no.1, Nagpur
Municipal Corporation and respondent no. 2 its Executive
Engineer to provide work of water distribution only to 207
tankers with 25 additional tankers i.e. only to persons whose
names figure at serial no. 1 to 232 in the merit list. Other
prayer is to direct respondent nos. 1 & 2 not to provide that
work to tanker owners whose names figure at serial no. 233 to
358 in that merit list. In present matter, it is not in dispute that
in response to notice (E-notice) calling for Expression of Interest
(EOI) issued on 23.6.2016, total 394 tanker owners responded.
The first 358 tanker owners therein have their vehicles
registered in 2016 and therefore, have been short listed and
held fit in the process.
3. Petitioners submit that in EOI, the number of vehicles of
all capacities needed by Corporation has been expressly
restricted to 207 and in case of emergency, reserved pull of 25
vehicles is also envisaged. Hence, as per EOI, entire work of
supply of water within various Wards of Nagpur Municipal
Corporation must be handed over to and handled through only
207 plus 25 tanker owners.
4. Advocate Shri. Voditel submits that the figure of 207 plus
25 has been arrived at with due application of mind.
Considering that figure and area to be catered, tanker owners
have estimated the business available for themselves and have
found rate quoted by them viable because of the assured trips
for their respective vehicle per day. As respondent no. 1 & 2
have not kept this promise and increased the number of tanker
owners beyond 232 to 358, the business of first 207 tanker
owners or 232 tanker owners in merit list would be adversely
affected. He contends that this change therefore, is unilateral
and unsustainable.
5. He further submits that after this Court issued notice, a
reply affidavit has been filed and an excuse of need of supplying
water to certain more areas like Hudkeshwar and Narsala has
been pleaded. He submits that, this area was already
considered and thereafter, the requirement of 207 plus 25 was
worked out. Thus, a false or lame excuse is being pressed into
service before this Court.
6. He has also invited attention to Resolution of Standing
Committee dated 17.10.2016 to urge that that Resolution also
does not enable respondent nos. 1 & 2 to travel beyond limit of
207 plus 25. He submits that therefore, it was / is not
necessary for petitioners to challenge that Resolution. In the
alternate and without prejudice, he submits that Resolution of
Standing Committee can not be read and it can not travel
beyond the need duly recognized by office at 207 plus 25. The
expansion of zone to 358 therefore on the basis of said
Resolution is unwarranted and arbitrary.
7. He has drawn support from Division Bench Judgment of
this Court reported at 2012 (4) Bom R 683 in Welspun Projects
Ltd. Vs. Mira Bhayander Municipal Corporation, Thane,
particularly paragraph nos. 30, 49 and 52 thereof. He submits
that the Bids Evaluation Committee / Standing Committee in
present matter also as in that matter acted, without jurisdiction.
8. Advocate Shri. Quazi appearing for respondent nos. 1 & 2
has invited our attention to reply affidavit. He submits that
invitation was only to express interest and thus Bids were
invited. Till issuance of Work Order on 5.11.2016, there was no
contract with any tanker owner. All work orders have been
issued after 5.11.2016 upto 30.11.2016 and thereafter from
20.12.2016 with reference to the said Resolution of Standing
Committee. He contends that the clauses of notice inviting
persons to express interest are very clear and no particular
quantity of business or trips was assured. No specified number
of trips were also assured. He points out that to supply water in
areas under 10 zones of Nagpur Municipal Corporation, there
are only 15 hydrants available and all vehicles need to collect
water from those points. Demand for water in morning is more
and hence water needs to be catered to those area in specific
hours. He adds that water can not be supplied at odd hours. He
therefore, submits that effective supply can be only during day
time for very short period and hence more number of tankers
are required. Though particular number was stipulated in
advertisement, after the offers come, the same were processed
and entire material was placed before Standing Committee.
Standing Committee, in its wisdom has on 17.10.2016 found it
not fit to restrict work to just 207 or 207 plus 25 persons in
merit list but it has found that services of all 358 registered
vehicles need to be used. Accordingly, in the light of this
Resolution dated 17.10.2016, the Work Orders have been issued
from 5.11.2016 onwards as per the need felt by Corporation.
He contends that in absence of challenge to this Resolution of
Standing Committee, the petitioners can not succeed.
9. He further adds that even otherwise, as it was only an
advertisement inviting offers, in absence of any definite plea of
estoppal or legitimate expectation, the petitioner can not
succeed. He has also made available the original file of
Corporation regarding processing of the EOI for perusal of this
Court.
10. Advocate Shri. Samarth, Shri. Bhutada and Shri. Ghare for
respective interveners have supported argument of Shri. Quazi.
They submit that in view of specific prayer not to allot work to
those in merit list whose names figure beyond 232, the said
persons ought to have been joined as 'party respondents'. It is
pointed out that this Court has permitted their respective clients
to intervene in the matter and total number of interveners
before this Court is about 41. Thus, other affected persons are
not even interveners before this Court.
11. Reliance has been placed upon judgment of Hon'ble Apex
Court reported at AIR 2016 SC 4305 in Afcons Infrstructure Ltd.
Vs. Nagpur Metro Rail corporation Ltd. & Anr. to urge that as
such competitors who are in fact beneficiaries in present matter
are not joined as party respondents, the petition is liable to be
dismissed.
12. Advocate Shri. Voditel in reply has submitted that merit
list as per advertisement was to consist of only 207 plus 25
persons and as such the persons whose names figure beyond
232 are not necessary parties at all. He has also invited our
attention to the list of tanker owners placed on record by
respondents nos. 1 & 2 as part of Annexure R-4. That list is
titled 'List of Tanker Owners' and issued letter of intimation vide
Standing Committee Resolution No. 596 dated 17.10.2016. It
shows that the Work Orders have been issued to first 207
persons from 5.11.2016 to 18.11.2016 while persons whose
names appear at serial no. 208 upto serial no. 355 therein have
been issued Work Orders mostly on 20.12.2016 or thereafter.
He contends that this document therefore, even does not
support the stand of respondent nos. 1 & 2 that work has been
distributed as per the Resolution of Standing Committee. While
answering to the query, learned counsel also submitted that as
respondent nos. 1 and 2 are Statutory Body, the stipulation in
advertisement is binding upon them and any deviation
therefrom needed to be supported / justified by proper material.
Figure of 232 tanker owners was expressly advertised and there
is no material on record or any plea to show that that number
was found insufficient. Resolution of Standing Committee also
does not contain any such material and a false and lame excuse
of catering to Hudkeshwar and Narsala area has been pressed
into service though said area had already entered the
consideration of authorities before floating EOI.
13. After hearing respective counsel, we find that the terms
and conditions of EOI though point out vide clause 1.2.B while
defining extent of work, total requirement of vehicles, the same
is qualified by stipulation that quantity or capacity may change
as per requirement and changing the quantity is discretion of
Nagpur Municipal Corporation. Clause 1.4 lays down criteria for
selection of vehicles. It is stipulated that merit list is to be
prepared in descending order of date of manufacture of vehicle.
It is also made clear that the limit for registration of multiple
vehicles of one owner is restricted to two only. As per clause
1.5.12 initial contract period is of one year from the date of
registration of a vehicle with Nagpur Municipal Corporation and
it can be extended for further period of one year. Clause 1.20
is again about period of contract and contains identical
provision. Clause 1.26 deals with allotment of work to
successful bidder and it reads:
"NMC does not bind itself for allotment of work to all
participant of EOI in whole / part thereof. The allotment of place
and period of work will be discretion of NMC. No interference
will be entertained in any case. The shifting of place of work
from time to time will be binding on bidder.
The work allotment will be performed as per actual
requirement. If there is less requirement, NMC may curtail the
tankers or phasing out the tanker and no assurance of allotment
of work to all successful bidder is hereby given in this EOI."
14. Terms of reference accompanying the EOI also show the
right of NMC to decide to scale up or scale down number of
vehicles or trips per vehicle. In special conditions of contract
accompanying EOI, vide 'clause-6' NMC has declared that it is
not bound to allot any fix quantum or regular work to the
Bidder, the requirements may vary zone-wise from time to time.
It has also reserved to itself right to reduce such number of trips
or to terminate any, few or all tankers as per demand of water
assessed by it. Vide clause 13, it has also reserved right to allot
work at approved rates to vehicles who have not taken part in
the Bid, if the vehicle fulfills the conditions as required in the
Bid.
15. In the light of these stipulations, petitioners have given
their offer and list of 394 tanker owners was then prepared by
respondent no.2. This list was presented to Standing
Committee for further processing.
16. Standing Committee has considered the issue in its
meeting dated 17.10.2016. The subject is "Subject No. 596"
and it deals with four distinct items. By First Item, the rates for
transporting water have been approved. By Second Item,
Standing Committee accepted the proposal of Workshop
Department and permitted registration of 394 tanker owners
found eligible or qualified in EOI. By last Item i.e. Item No. 4,
the rate to be paid to transporters who were continuing till
30.10.2016 is decided.
17. Item No. 3 in said Subject No. 596 is the bone of
contention between parties. Subject put by office was to allot
work to first 207 tanker owners in a list prepared by it after
processing EOI. Office also proposed that remaining tanker
owners be provided work as per its availability. This issue has
been considered and Standing Committee has resolved to allot
work of transportation of water through tankers to all tankers /
vehicles registered with Corporation in 2016. Thus, though EOI
specified the need to be 207 plus 25 and the office of
respondent no. 1 and 2 accordingly put a subject only to allot
work to 207 tanker owners whose names appear at serial no.1
to 207 in merit list, Standing Committee, in its wisdom, has
thought it proper to provide transportation work to all vehicle
owners registered in 2016. Standing Committee has therefore
expanded the zone of consideration available for allotment of
work.
18. The Work Orders have been issued to petitioners after this
resolution and first such Work Order has been issued on
5.11.2016. Each Work Order mentions said Resolution of
Standing Committee. The petitioners have not disputed this
Resolution in any manner. They have not also challenged it.
Effort was to urge that Resolution needed to be understood as
accepting proposal of office to provide work only to 207 plus 25
tanker owners.
Thus, when contract between respondent no. 1 and
petitioners came into existence because of Work Orders, it is in
tune with Resolution of Standing Committee dated 17.10.2016.
19. Various clauses of advertisement inviting Expression of
Interest also show that there was no promise to any petitioner
of any assured work or assured quantity. The fact that work,
quantity may vary or shall depend upon need was brought on
record by respondent Corporation. The petitioners, therefore,
can not claim that they had any legitimate expectation in the
matter to urge that respondent nos. 1 & 2 be stopped from
providing work to 355 tanker owners. The facts pleaded in
petition do not expressly bring on record any definite case in
this respect. The petitioners have not pointed out as to how
providing work to persons beyond 232 has adversely affected
their work or trips. In the absence of this material, we are not
inclined to accept the submission on affidavit by respondent
that need to employ more vehicles has been recognized and
accordingly Standing Committee has passed a Resolution. There
are no allegations of malafides against Standing Committee or
any member of Standing Committee or even against respondent
no.1 and 2.
20. In the light of this findings, we do not find it necessary to
deal with the judgment cited as precedent before this Court.
The petitioners were aware of all the terms and conditions on
which they were supposed to express their interest. They were
also aware when they received Work Order, about the contents
of Resolution of Standing Committee. Having accepted Work
Order, they can not be permitted to turn around and claim that
work should be restricted only to first 207 or then 207 plus 25
tanker owners. Resolution of Standing Committee dated
17.10.2016 is decisive of terms and conditions. Petitioners
have not assailed it. Here offer was made by petitioners and
the consideration by the Standing Committee is not eclipsed by
the document inviting EOI. It was open to petitioners to back
out when work order was issued to them.
21. Moreover, the matter is in the domain of a private
contract between parties. The respondent nos. 1 & 2 may be
Statutory Bodies, still contract entered into by them is not
statutory in nature. Grievance of such a nature, therefore, can
not be redressed by approaching this Court.
22. If the petition is to be allowed, other tanker owners who
are getting work from respondent no. 1 & 2 will be thrown out of
business without even hearing them. Hence, failure to implead
them must be held to be fatal.
23. In this situation, in any case, if the petitioners wish to
claim any compensation or damages, they have to approach
appropriate forum as per law for redressal of said grievance.
In the light of this discussion, we find no case made out.
Writ petition dismissed.
Rule discharged.
No cost.
JUDGE JUDGE
******
Belkhede, PA
