Shasakiya Karmachari Sanghatana vs State Of Mah. Throu Its Secretary & ...
2017 Latest Caselaw 3217 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR


                        WRIT PETITION NO.19 OF 1998


              Shasakiya Karmachari Sanghatana
              Regd. No. 2140/79, Parwana Bhavan 
              Station Road, Nagpur through 
              its President Camp, Amravati ......... .. PETITIONER


              // VERSUS //


      1       State of Maharashtra 
              through its Secretary Public Works 
              Department, Mantralaya, Mumbai 32

      2       Nitin Jairamji Gadkari, 
              Minister for Public Works Department, 
              Gadkari Wada, Mahal, Nagpur

      3       Deodatta Marathe, 
              Chief Engineer, Public Works Department, 
              Nagpur Region, Civil Line, Nagpur

      4       Sudhakar Tekade, 
              Superintending Engineer, 
              Public Works Department, 
              Nagpur Circle, Old Secretariat Building, 
              Civil Lines, Nagpur - 1




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      5       Vivek Ghanekar, 
              Executive Engineer, 
              Public Works Department, 
              Divi. No.1,Residency Road, 
              Sadar, Nagpur                         ..... RESPONDENTS

      -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
               Mr.P.D. Meghe, Adv. for the Petitioner.
             Mr.N.H.Joshi, AGP for the Respondent No1.
       -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

                             CORAM     :     B.P.DHARMADHIKARI,  J.

R.B.DEO, J.

                                     DATE         :  13.06.2017. 


      ORAL JUDGMENT     (Per B.P.Dharmadhikari, J)  :


      1       The petitioner Association has on 2nd January, 1998

attempted to bring an important issue to the notice of this

Court. Cognizance of the issue has been taken in public

interest.

2 We have been hearing Advocate Shri Meghe for

petitioner and learned AGP for respondent no.1 since last 2

to 3 days.

3 Though certain respondents are joined as a party in

person, it appears that no specific role as such played by

them has been urged. Only because of impact of a possible

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direction sought from this Court upon them, they have been

joined as parties.

4 Briefly stated, Advocate Shri Meghe submits that

system of "Selective Tendering" provided for in Manual of

Public Works Department, has been abused and misused in

present matter. He has invited our attention to works

disclosed in Annexure B, Annexure C and Annexure D to

demonstrate that that process was not applicable in the

present matter. According to him, comparison of Annexure

C and Annexure D straightway shows a loss of Rs. 1 lakh

per painting. The amount paid on 16 works described in

Annexure B could have been much less had public tenders

been invited. He submits that in studied estimation of

petitioner Sanghatana, the loss to public revenue is Rs.

14,45,000/-. Advocate Shri Meghe further submits that had

matter been decided immediately it would have been

beneficial to public but then even at this stage appropriate

directions could be issued by this Court. He submits that if

possible, a direction to inquire into those works should also

be issued.

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      5       Learned   AGP   has   made   available   P.W.D.   Manual

alongwith modified Schedule 42 (dated 16.12.2015) for

perusal of this Court and has also given photographs of

relevant extracts. He submits that in an emergency the

power to take recourse to selective tendering is conferred

and has been accordingly used. He states that in present

matter, though, the work may have been known in advance

and the power appears to have been used, but then

circumstances in which it was used, are not on record. He

states that respondent no. 1 is still in the process of finding

out the relevant records. He adds that estimation of loss is

only a guess work of petitioner and can not be accepted.

Relying on Annexure C and D, he contents that argument of

paying more sum of Rs. 1,000/- per painting is

misconceived as there is no relation inter-se.

6 Upon instructions, from officer present informs that in

course of time, the tender process has been refined, made

more transparent and in most of cases, it is either paper

tendering or e-tendering. The works mentioned in

Annexure B are now being allotted by following

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appropriate procedure depending upon the value thereof.

He submits that as transparent process is being followed,

the grievance made by petitioner itself can not now arise

and does not survive.

7 We find that the petitioner has in petition pointed out

clause 2.2 of P.W.D. Manual which deals with tenders.

Tenders are required to be sealed and invited in open and

public manner either by advertisement in local newspaper

or by a notice in English or regional language pasted in

public places. Clause 210 governs situation prevailing in

tribal / difficult areas where contractors do not become

available easily for accepting such works. In that

eventuality, the department is authorized to take recourse

to process of selected tendering. A list of contractors is

required to be mentioned and the work is to be

communicated to them and offers are to be invited therefor

at least from three contractors. Thereafter, the lowest offer

can be accepted.

8 In present matter, perusal of Annexure B reveals that

19 works available under P.W.D. Division No.1, Division

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No. 2, Medical Division and Agriculture Construction

Division Nagpur are shown. These works have been done

in 1997-1998 through selective tendering. First work is

about renovation of kitchen in cottage of Hon'ble Deputy

Minister and P.A. at Ravi Bhavan. The approximate value

(estimated) is stated to be Rs. 5.16 lakh. According to

petitioner had there been proper tender and recourse to

competitive bidding, the department could have saved

amount of Rs. 50,000/- at least on this work. The work at

Serial No. 2 is providing aluminum partition in chamber of

Secretary in premises of Hyderabad House. Estimated cost

is Rs. 4.99 lakh and according to petitioners saving could

have been of Rs. 49,900/-. Thus, in all 16 works,

petitioners have presumed 10% of the estimate to be the

savings which could have been done had there been proper

tendering. It is, therefore, guess work of petitioner that at

least 10% of the amount could have been saved. In this

jurisdiction, we are not in a position to accept such guess

work or comment upon it either way. However, we find

substance in contention of Shri Meghe that these works

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could not have been subjected to selective tendering

process. As respondent no.1 has not produced relevant file,

we do not know why renovation to cottage or need to

provide aluminum partition to chamber arose and when it

arose, whether it was known in advance and therefore,

could have been processed through paper advertisement or

then it arose at eleventh hour, are the material questions.

In any case, such works normally can not arise at the

eleventh hour. There would be previous planning and

previous application of mind to it. The works, therefore,

could have been published and tenders could have been

invited. Renovation of cottage or provision of partition

could have been made after some time. It appears that

these works may have been done during winter session of

assembly in Nagpur, and therefore, may have been treated

as urgent works so as to enable the Hon'ble Minister or

their secretaries to be benefited thereby. However, works

can not be said to be of such a urgent nature that its

functioning would have been rendered impossible.

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      9       If   in   a   occupied   government   residence   roof   falls   or

there is other similar accident, adherence to normal

procedure of inviting tenders for repairing it may result in

undue delay thereby forcing the occupant to vacate the

quarter. Such a type of emergency is not shown in these

works. We therefore, find that the adoption of selective

tendering process for Annexure 'B' work in 1997-98 has not

be justified by respondents.

10 Even in tribal or difficult areas where works are to be

allotted by selective tendering, relevant provisions

contemplate drawing of list of contractors in advance.

Thus, qualified, eligible contractors are available and

through them the work is got done. Three of them are

given opportunity to offer their rates and then the tender

process is completed. This is not the situation in present

matter.

11 Alongwith Pursis today learned AGP has produced

clause 19 appended to schedule 42 which speaks of

selective tendering. However, then it contemplates reasons

to be recorded in writing and power is given to Chief

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Engineer, if the cost of work involved are upto Rs. 25 lakhs

and to Superintending Engineer, if cost is Rs. 10 lakhs. But

then this clause 19 again shows that it recognizes normal

procedure of getting said works done through tender. Thus,

only in exceptional circumstances, deviation from normal

procedure has been permitted. In present matter, no such

privilege has been claimed by respondent no.1.

12 Our observations could have been used with

advantage had this matter been decided immediately after

its filing. We are making these observations almost 19

years after petition came to be filed and 20 years after the

works were done. The Schedule appended to P.W.D.

Manual has been changed in the meanwhile. More

transparent process is claimed to have been introduced.

Petitioner Sanghatana acting vigilantly could have brought

these new changes or record. But petitioner has not raised

any grievance about it on any occasion. It has not pointed

out any lacune in amended provisions. We only mention

that it also did not move any application for early hearing

in the matter.

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                     13               Bare perusal of Annexure C and D show that

both can not be seen as part of same transaction. But, then

recourse to selective tendering was not warranted even

then.

14 Petitioner, however, does not point out any nepotism

or corruption in the process adopted. There is no complaint

about quality of works. Hence, taking overall continue the

matter, we are not inclined to issue any directions in this

writ petition at this stage. However, considering the

position of petitioner, we grant petitioner Sanghatana

opportunity to approach again if after going through

revised norms, it finds any mischief or any scope for

improvement. Needless to add that if it finds any instance

of abuse or misuse of power, it can approach proper forum

in accordance with law. With these observations and

opportunity to petitioner, we discharge Rule. Writ

petition / P.I.L. is disposed of. No costs.

                                              JUDGE                      JUDGE

belkhede, PA