Bombay High Court
Digvijay Enterprises Nashik Thr ... vs The State Of Maharashtra And ... on 7 July, 2021
Bench: S.V. Gangapurwala, Rajesh Narayandas Laddha
(1) 960-wp-5577-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5577 OF 2021
Digvijay Enterprises Nashik
Through its Proprietor
Shri. Sahebrao S/o Damu Shewale,
Age- 50 years, Occupation-Business,
Office/Resident of : Plot NO.A-18, Abhijeet Park,
D-1, Kamal Nagar, Kamatwade, Cidco, Nashik,
Tq. & Dist. Nashik. ..PETITIONER
VERSUS
1. The State of Maharashtra
Through Principal Secretary,
Urban Development Ministry, Mumbai - 32.
2. Nagar Panchayat Muktainagar,
Tq. Muktainagr, Dist. Jalgaon,
Through it's Chief Officer. ..RESPONDENTS
...
Mr. Bhausaheb S. Deshmukh, Advocate for the
Petitioner.
Mr. S. G. Karlekar, AGP for Respondent No.1.
Mr. M. M. Patil, Advocate for Respondent No.2.
...
CORAM : S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
DATED : 07th JULY, 2021.
ORAL JUDGMENT (Per: S. V. Gangapurwala):-
1. Rule. Rule made returnable forthwith.
With the consent of parties matter is taken up for
hearing at the admission stage.
2. The petitioner is assailing issuance of
fresh tender notice, so also forfeiture of his
Earnest Money Deposit (EMD).
3. The respondent no.2-Nagar Panchayat
floated tender for solid waste collection and
(2) 960-wp-5577-2021
management. The petitioner was the lowest bidder.
Subsequently, it appears that, repeated draft
agreements were prepared. The petitioner was not
in agreement with some terms. The respondent no.2
canceled the tender process. The General Body of
respondent no.2 took a decision to forfeit EMD of
the petitioner and to float fresh tender.
4. While issuing notice on 08.04.2021, we had
observed that, we are not inclined to consider the
case of the petitioner so far as fresh tender
process is concerned and the petition was limited
to the grievance of the petitioner qua forfeiture
of EMD.
5. Mr. Deshmukh, learned counsel for the
petitioner submits that respondent no.2 is
deviating from the terms of tender every now and
then. It was not possible for the petitioner to
follow the terms and conditions alien to the tender
documents. The learned counsel further submits
that, in the original tender the petitioner was not
supposed to bear the petrol and diesel charges. In
the draft agreement submitted, respondent no.2 came
out with a clause that the petitioner should bear
the petrol and diesel charges.
6. It was also not agreed that the respondent
no.2 will have right to impose penalty upon the
petitioner. The respondent no.2 in the draft
agreement also introduced clause of penalty.
(3) 960-wp-5577-2021
7. The learned counsel submits that the
petitioner possesses his own closed vehicles for
the collection of solid wastes. The respondent
no.2 insisted that the vehicle of respondent no.2
only should be used for the said purpose.
According to the learned counsel as the terms and
conditions of the tender were not abided by
respondent no.2, the petitioner did not execute the
agreement in favour of respondent. The petitioner
cannot be penalized for the same.
8. Mr. Patil, learned counsel for respondent
no.2 submits that the petitioner did not remain
present during the pre-bid meeting. The petitioner
in its letter dated 13.01.2021 agreed to get the
drainage cleaned and to transport the wastes
through tractor. Now, when the draft agreement was
forwarded to the petitioner, the petitioner took a
somersault. It is not that, respondent no.2 was
deviating from the terms of the tender. The
petitioner was time and again asking for
relaxation. The respondent no.2 took a sympathetic
approach towards the petitioner and even relaxed
the conditions of petrol and diesel charges to be
borne by the petitioner, still the petitioner did
not abide by the terms. Eventually, the General
Body took a decision to forfeit EMD and to float
the fresh tender.
9. We have considered the submissions
canvassed by the learned counsel for the parties.
(4) 960-wp-5577-2021
10. The tender provided the following works to
be performed by the tenderer:
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1 eqDrkbZ uxj 'kgjkrhy vksyk o lqdk dpjk ?kjks?kjh tkmu 4,15,080
nSuanhu BjysY;k fuf'pr osGsr ?kaVkxkMh}kjs vkokt nsmu
ladyhr dj.ks o okgrqd dj.ks ;ke/;s izHkkxkrhy laiq.kZ ?
kjs] fcfYMax] def'kZ;y dkWEIysDl bR;knhpk lekos'k vlsy
o jLrs vkf.k ukys lQkbZrqu fu?kkysyk xkG o dpjk]
fBdfBdk.kh lkBysyk dpjk rlsp jLR;kps cktqyk iMysyk
gydk dpjk] >kMkaP;k Qka|k jLR;kP;k dMsyk iMysys
Msczht] esysyh tukojs o brj loZ izdkjpk vksyk o lqdk
dpjk b- lekos'k vlsy rlsp vkjksx; fujh{kd o
eq[;kf/kdkjh lqporhy vls dkes-
2 eqDrkbZ uxj 'kgjkrhy m?kM;k xVkjh lkQ dj.ks o 3,66,000
xVkjhckgsj ?kk.k dk<.ks] Hkqehxr xVkjh lkQ dj.ks o
vko';drk HkklY;kl xVkj m?kMhd#u ?kk.k dk<kus o can
dj.ks] R;klkBh vko';d vlysY;k loZ mik;;kstuk dj.ks-
3 eqDrkbZ uxj 'kgjkrhy tarquk'kd Qokj.kh] /kqjG.kh] vcsfVax] 88740
eysjkWu vkWbZy fNMdko rlsp lkFk jksx izfrca/kkRed
mik; ;kstuslkBh euq";cG iqjoBk dj.ks-
4 eqDrkbZ uxj 'kgjkrhy e`r tukojs o csokjl izsr mpyus o 29,580
foYgsokV yko.;klkBh euq";cG iqjoBk dj.ks-
11. The terms and conditions of the tender are
required to be clear and unambiguous.
12. It appears that, after the tender of the
petitioner was accepted, there was further
deliberation between the petitioner and respondent
no.2 and from time to time, the terms and
conditions were sought to be imposed and/or
relaxed. Three draft agreements containing some
changes in the terms and conditions were drafted.
13. It appears that, parties were never ad
idem about the terms and covenants of the tender.
(5) 960-wp-5577-2021
The parties did not arrive at conclusion of the
exact terms and conditions of the tender. In the
first draft agreement, it was the condition put
forth by respondent no.2 that the petitioner would
bear the petrol and diesel charges for
transportation. Upon representation, the said
condition was relaxed in the next draft agreement.
In the third draft agreement, the condition of the
penalty was also imposed. There were changes made
in the draft agreement from time to time.
14. It appears that, terms and conditions of
the tender were not certain. If the terms and
conditions of the tender are not certain or the
meaning of which cannot be made certain, is to that
extent void. Reference can be had to Section 29 of
the Contract Act. If the parties are not ad idem,
it cannot be said that consent is a free consent,
as required under Section 13 of the Indian Contract
Act.
15. It appears that, consistently and
repeatedly draft agreements were prepared by
respondent no.2 and presented to the petitioner.
There were some modifications of the terms and
conditions in each and every draft agreements.
16. In light of the above, it cannot be said
that the petitioner is entirely at fault in not
proceeding ahead in signing the draft agreement.
The work order was not issued to the petitioner.
(6) 960-wp-5577-2021
17. As the terms and conditions were not
finalized, it cannot be said that the concluded
contract came into existence.
18. Considering the overall scenario of the
matter, it would not be appropriate on the part of
respondent no.2 to forfeit the EMD of Rs.1,13,000/-
deposited by the petitioner.
19. In light of that, the impugned Resolution
of the General Body to the extent of forfeiting the
EMD is set aside.
20. The respondent no.2 shall refund EMD of
Rs.1,13,000/- to the petitioner preferably within a
period of six (06) weeks from today.
21. Rule accordingly made absolute in above
terms. No costs.
(R. N. LADDHA) (S. V. GANGAPURWALA)
JUDGE JUDGE
Devendra/July-2021
