Bombay High Court
Prithviraj Enterprises vs State Of Maharashtra And Anr on 28 June, 2021
Bench: S.C. Gupte, Makarand Subhash Karnik
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
DDR/Bhogale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 750 OF 2021
Prithviraj Enterprises ....Petitioner
Vs.
State of Maharashtra and anr. ..... Respondents
WITH
WRIT PETITION NO. 1008 OF 2021
Shrinath Transport Company ....Petitioner
Vs.
State of Maharashtra ..... Respondent
WITH
WRIT PETITION NO. 1010 OF 2021
Vidarbha General Kamgar Union, Nagpur ....Petitioner
Vs.
State of Maharashtra ..... Respondent
WITH
WRIT PETITION NO. 1014 OF 2021
M/s.Girish Subhash Munale & Company ....Petitioner
Vs.
State of Maharashtra and anr. ..... Respondents
WITH
WRIT PETITION NO. 1015 OF 2021
M/s.Om Shri Ganesh Transport ....Petitioner
Vs.
State of Maharashtra ..... Respondent
1/53
::: Uploaded on - 29/06/2021 ::: Downloaded on - 29/06/2021 23:27:00 :::
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
WITH
WRIT PETITION NO. 1016 OF 2021
M/s.Kailash Zanwar ....Petitioner
Vs.
State of Maharashtra ..... Respondent
WITH
WRIT PETITION NO. 1017 OF 2021
Paldear Prashant Agro Tech Pvt. Ltd. ....Petitioner
Vs.
State of Maharashtra and ors. ..... Respondents
WITH
WRIT PETITION NO. 1019 OF 2021
M/s.IMS Bhatia Transport Contractor ....Petitioner
Vs.
State of Maharashtra and anr. ..... Respondents
WITH
WRIT PETITION NO. 1021 OF 2021
Jai Bhavani Hamal Kamgar
Sahakari Sanstha and anr. ....Petitioners
Vs.
State of Maharashtra and ors. ..... Respondents
WITH
WRIT PETITION ST. NO. 11311 OF 2021
The New Grain Dealers Service Resource
Co-operative Society & ors. ..PETITIONERS
VS.
The State of Maharashtra & ors. ..RESPONDENTS
---------------
2/53
::: Uploaded on - 29/06/2021 ::: Downloaded on - 29/06/2021 23:27:00 :::
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
Mr.Anil V. Anturkar, Sr. Advocate a/w Mr.Mahesh Tarawade &
Mr.Vilas Londe i/b Mr.Ranjit D. Shinde, for the Petitioner in
WP/750/2021.
Mr.S.M. Vaishnav, for Petitioner in WP/1008/2021.
Mr. Nikhil Sakhardande, Sr. Advocate a/w. Mr. Hrishikesh S.
Chitaley, Rohit P. Masurkar for the Petitioner in WP/1010/2021.
Mr. Santosh S. Jadhavar for the Petitioner in WP/1014/2021.
Mr. S.P. Shah a/w. Mr. Aditya N. Sikchi for Petitioner in
WP/1015/2021 and WP/1016/2021.
Mr. V.D. Sapkal, Sr. Advocate, Mr. Sandip R. Sapkal and Ajit B.
Chormal for the Petitioner in WP/1017/2021.
Mr. R.N. Dhorde, Sr. Advocate a/w. Mr. Vikram R. Dhorde for the
Petitioner in WP/1019/2021.
Mr. Sanket S. Kulkarni for the Petitioners in WP/1021/2021.
Mr. Sunip K. Sen a/w. Mr. Pandurang A. Pol, Mr. Ranjit S. Hatkar
i/b. Pol Legal Juris for the Petitioners in WPST/11311/2021.
Mr.A.A.Kumbhakoni - AG, a/w Mr.P.P. Kakade - GP, a/w Mr.Akshay
Shinde - B Panel a/w Mr.A.P. Vanarase - AGP, Mr. S.S. Panchpor -
AGP, Smt. G.R. Golatkar, AAGP for the Respondent - State.
Mr. Sudhir Tungar, Joint Secretary, Food & Civil Supplies
Department - present.
---------------
CORAM : S.C.GUPTE &
M. S.KARNIK, JJ.
RESERVED ON : JUNE 17, 2021
PRONOUNCED ON : JUNE 28, 2021
JUDGMENT (PER M.S. KARNIK, J.)
Rule. Rule is made returnable forthwith. Heard fnally with
the consent of the parties.
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
2. The issues involved in these Petitions are common and
therefore disposed of by a common judgment. However, Writ
Petition Stamp No.11311 and Writ Petition No.1010 of 2021,
though they challenge the same GR, considering the nature of
that challenge, are dealt with separately.
3. These Petitions under Article 226 of the Constitution of
India take exception to the Government Resolution bearing
No.Contract / 1120 / Pra. Kra.106 / Na. Pu. 16-A Food and Civil
Supplies and the Consumer Protection Department, Government
of Maharashtra dated January 15, 2021 ('GR dated January 15,
2021' for short). In the alternative, the Petitioners have
challenged various clauses in the said GR dated January 15,
2021. The details of the relevant clauses under challenge are set
out in the later part of this Judgment.
THE CHALLENGE IN BRIEF :
4. The impugned GR dated January 15, 2021 has been issued
by the State Government for the purpose of giving contracts of
transportation of food and other essential commodities from the
Food Corporation of India (FCI) Godown to Public Distribution
Shops (PDS). It is the contention of the Petitioners that the terms
and conditions and criteria prescribed by the GR dated January
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
15, 2021 have no nexus with the purpose for which the tender is
issued, as a result of which, though the Petitioners are very much
competent and otherwise equipped to execute the works under
the GR dated January 15, 2021, due to tailor-made conditions set
out in the GR to favour existing bidders, the Petitioners are
arbitrarily excluded from participating in the tender process.
5. For the purpose of convenience we refer to the facts in Writ
Petition No. 750 of 2021.
6. The State of Maharashtra had from time to time issued
various GRs for the purpose introducing transparency and for the
purpose of ensuring that the benefciaries receive food and civil
supplies on regular basis and in prescribed time. Towards that
end, initially, GR dated February 23, 2012 was issued. As per this
GR, from the base depot of the FCI upto the ration shop in the
districts, transportation was to be done under one contract at the
cost of the Government, for maintaining the food and civil
supplies.
7. Thereafter, vide GRs dated November 26, 2012 and April
20, 2017, in all districts in the State of Maharashtra, food and
civil supplies were to be transported, in two stages, that is to say,
frst from FCI depot to district collection centres or Government
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
godown and from there to individual fair price shops, and in
respect of circle areas of Mumbai and Thane and so far as
municipal corporation areas of Pune, Nashik, Nagpur,
Aurangabad and Solapur are concerned, directly from FCI depot
to fair price shops. The guidelines for such transportations were
prescribed by these two GRs dated November 26, 2012 and April
20, 2017.
8. Thereafter, GR dated November 1, 2018 was issued for the
purpose of bringing co-ordination in the handling of food and civil
supplies department at the level of the Government godown and
for the purpose of making transportation of food and civil
supplies as per 'PDS' managed by the Government of
Maharashtra and for increasing the efciency thereof. Towards
that end, it was decided that combined tenders would be issued
and that was so provided by this GR dated November 1, 2018.
9. The issuance of GR dated November 1, 2018 resulted in
hamal contractors raising a grievance that the said GR would
adversely afect their work. Various Writ Petitions came to be
fled challenging the GR dated November 1, 2018. Consequently,
the State of Maharashtra took a decision vide GR dated
September 20, 2019 to withdraw and repeal the earlier GR dated
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
November 1, 2018. Thereupon, the impugned GR dated January
15, 2021 came to be issued. It is the Petitioners' case that this
GR has adversely afected the Petitioners, hence these Petitions.
SUBMISSIONS MADE ON BEHALF OF THE PETITIONERS
(EXCEPT WRIT PETITION STAMP NO.11311 AND WRIT
PETITION NO.1010 OF 2021)
10. The Petitioners are aggrieved by the impugned GR dated
January 15, 2021 more particularly Clauses 5.1, 5.2, 5.3, 5.15,
and 5.16 thereof. According to learned Counsel, there are no
provisions similar or comparable to these clauses in the earlier
GRs. Our attention is invited to the comparative table of the
various GRs referred to herein before with those of the relevant
provisions of the impugned GR dated January 15, 2021.
11. Having regard to the nature of the challenge, the
submissions made in these Petitions by learned Senior Advocates
and learned counsel are overlapping. Broadly the submissions
are stated thus :
(a) That provision of experience of transportation only in
Government or semi Government entities to the exclusion of a
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
bidder who may have a vast experience of transportation of food-
grains in respect of non Government and autonomous entities is
without any basis and irrational. That the purpose for inviting
bids is 'transportation of food-grains' from FCI godowns to PDS.
There is, therefore, no rational or logic in only considering those
transporters who have experience with Government or semi -
Government entities. The nature and manner of transport is
identical. This exclusion is unreasonable and irrational and has
no nexus with the object sought to be achieved, i.e. the
transportation of food grains from the FCI godown to the PDS.
(b) Insistence on experience in respect of those bidders who
are transporting food-grains only and not that of transport of
other essential commodities is not at all justifed. Food grains
undoubtedly classify as an essential commodity under the
provisions of the Essential Commodities Act. Likewise even
cement and other goods classify as essential commodities.
Therefore, exclusion of a bidder who has experience of
transporting essential commodities other than food grains is
arbitrary and unjustifable. There is no rational basis for insisting
that only bidders who have experience in transporting food
grains alone will qualify to bid.
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
(c) The criteria of experience matching 33% of the work in the
particular district after taking into consideration the total
transportation work in that particular district in last 3 years is
wholly irrational. A bidder may have experience of transporting
goods in diferent districts and therefore, the experience in
diferent districts may vary depending on the supply. To insist
that the experience must match 33% work in the particular
district is completely irrational, as though the bidder may have a
large experience of transportation of goods, but may well fall
short of matching 33% of the work in the particular district after
taking into consideration the total transportation work in the
particular district in the last 2 years. The criteria of 33% work
experience in a particular district is absolutely irrelevant and
capricious.
(d) A perusal of GRs dated February 23, 2012, November 26,
2012, April 25, 2017, November 1, 2018, September 20, 2019
and April 25, 2017 would reveal that at no point of time, there
was any insistence on transport experience only of 'Government
or semi Government' or experience only in 'transportation of food
grains'. It is therefore submitted that when right from the year
2012 till the issuance of the impugned GR, when transportation
of food and civil supplies was being carried out smoothly and
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
efectively in accordance with the conditions set out in those
GRs, the State Government was not justifed in deviating from
the criteria prescribed in the earlier GRs by introducing a new set
of conditions altogether. This has adversely afected the
Petitioners, who otherwise are eligible to bid in terms of the
earlier GRs.
(e) The relevant conditions could include (i) reliability of the
bidders is a reliable contractor, (ii) his work experience, and
(iii) infrastructure, vehicles and manpower required for
transportation at his command for the purpose of reliable and
time bound distribution of food and civil supplies. Any criteria
which can be applied for the purpose of meeting these
requirements can be said to be reasonable criteria but the
criteria prescribed by the impugned GR are absolutely
unreasonable, whimsical and arbitrary. A reference is then made
to transportation contracts of similar nature awarded by the FCI,
to suggest that even FCI does not insist that the experience has
to be only in 'food grain transportation'. The submission is that
by making such artifcial distinction, the element of free and fair
competition, which is the very essence of contract processes run
by the State, is completely done away with. This results in
completely excluding new entrants and even those bidders who,
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
though they have experience, cannot bid as a result of these
stringent conditions.
(f) So far as Clause 5.16 is concerned, the impugned GR dated
January 15, 2021 nowhere specifes exactly at what stage the
decision is taken for supplying satisfactory documents mentioned
in Clause 5.16 and at what stage and which authority will take a
decision to qualify the contractor who wants to submit necessary
documents to enable the tender committee to decide the
contractor's eligibility.
(g) It is submitted that the standardization process adopted is
arbitrary. Further, it is contended that there is discrepancy in
Clauses 5.16 and 10.5 of the GR. These submissions are dealt
with in the later part of this judgment.
12. On the other hand, Shri Kumbhakoni, learned Advocate
General, submitted that the State Government has taken an
informed policy decision after considering all relevant materials
in larger public interest. He submitted that the Petitioners cannot
claim a fundamental right to carry on business with the
Government. According to him, the impugned guidelines do not
in any manner violate any of the fundamental rights of the
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
Petitioners. Learned Advocate General contends that prescribing
pre - conditions and/or qualifcations for tenders so as to choose
an efcient contractor is in the realm of the policy and executive
action of the State Government and in the absence of any
arbitrariness, discrimination or malice, the same is not open to
judicial scrutiny. He relied upon Section 3 of the National Food
Security Act, 2013 and orders made thereunder to contend that
the Public Distribution System (Control) Order 2015 casts a duty
upon the State Government to make an arrangement for taking
delivery of food-grains from the base depots of FCI and ensure
that the same reaches the fair price shops within 1 st week of the
month for further distribution. He pointed out that it is the duty of
the State Government to appoint an experienced and eligible
transport contractor who would provide efcient, quick and
quality service for transportation of food-grains. Learned
Advocate General pointed out that the State Government is
required to deal with issues like black marketing of food-grains,
misappropriation/ leakage of food-grains and delay in delivery of
food-grains. Therefore, the State Government decided to adopt
advanced techniques like installation of geo-mapping in vehicles,
installation of load cells, establishing district level monitoring
cells, strengthening supply chain, etc. He submits that the terms
and conditions of the tenders for awarding transport contract
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
stipulated as per the policy dated 26/11/2012 and 20/4/2017
framed by the State Government were of general nature. It was
noticed that inexperienced and inefcient transport contractors,
who ultimately fulflled such general terms and conditions, ended
up being awarded contracts. It was noticed that these transport
contractors lacked sufcient basic resources and hence,
transportation of food-grains was not efciently carried out. This
led to termination of contracts in some districts which further led
to inconvenience. To overcome the difculties faced by the
general nature of terms and conditions of tender and also in
order to strengthen the transport system, the State Government
has decided to frame the present policy dated January 15, 2021,
so as to stipulate pre-conditions and qualifcations for tender to
ensure that the transport contractor has the capacity and
resources to successfully and efciently execute the work. He
then pointed out what are the basic objectives of the new policy
dated January 15, 2021. He ultimately submitted that this entire
exercise is to ensure that the food-grains are distributed to
eligible benefciaries within time as per the schedule. Learned
Advocate General submitted that the Petitioners cannot claim a
vested right to do business with the Government. Moreover,
prescribing the conditions is entirely within the purview of the
executive and the Courts hardly have any role to play in this
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
process except for striking out such action of the executive as is
proved to be arbitrary or unreasonable.
13. In support of his submissions, learned Advocate General
relied upon the decisions of the Apex Court in Michigan Rubber
(India) Limited vs. State of Karnataka and others 1 and
Shimnit Utsch India Private Limited and another vs. West
Bengal Transport Infrastructure Development Corporation
Limited and others2. He also relied upon the decisions of this
Court in Central Railway Caterers' Association and another
vs. Union of India and others 3, Balaji Goods Transport
Company vs. State of Maharashtra and another 4 and TPS
Infrastructure Ltd. and another vs. Thane Municipal
Corporation and others5.
14. Heard learned Senior Advocates and learned Counsel
appearing on behalf of the respective parties. We have heard
learned Advocate General appearing on behalf of the Respondent
- State. We have perused the pleadings and the documents
annexed and the compilations tendered.
1 (2012) 8 SCC 216
2 (2010) 6 SCC 303
3 2016(2) Mh.L.J. 769
4 2014(3) Mh.L.J. 569
5 2014 (4) Mh.L.J. 551.
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
CONSIDERATIONS :
15. At the outset, a reference to various Clauses of the GR
which are under challenge / or relied upon needs to be made for
appreciating the controversy in its proper perspective. English
translation of Clauses 5.1, 5.2, 5.3, 5.15, 5.16 read thus :-
"5.1) Work Experience :
Tenderer should have the experience of the work of
Government/Semi-Government food grain transportation of
minimum one year out of previous fve continuous fnancial
years. Work experience of the tenderer should be upto the
capacity of 33% of the work of transportation which has
been carried out during previous three years in the district
where he is flling the tender for district/zone. It is
necessary that the said experience should be in the name
of the tenderer himself who is flling the tender.
5.2) The experience of the work mentioned at para 5.1
above should be of doorstep delivery scheme and work of
any other schemes of Government/Semi-Government
transportation of Central/State Government similar to this
scheme. For considering the experience of transportation
with Central/State Government and Semi-Government
undertakings, copies of all work orders and experience
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
certifcate of the Competent Authority will be required to
be submitted.
5.3) Financial capability :
For the same period in respect of the work
experience indicated by the tenderer in paragraph 5.1
above, the tenderer should have a total minimum fnancial
turnover of transportation which should be 33% of the total
expenses incurred on transportation during the previous
three years in the district/zone for which he is flling the
tender.
5.15) In connection with Government/Semi-Government
work, if the contract of the contractor has been terminated
as a result of default on his part or if he is found inefcient
any time during the past continuous 5 years, then such
frms/persons will not be eligible to participate in the
tender process.
5.16) Any tenderer whose Earnest Money Deposit/Security
Deposit has been forfeited by the Government/Semi-
Government Department during the past continuous 5
years, will not be eligible to participate in the tender
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
process. However, in respect thereof, on producing
satisfactory documents in this regard, the Tender Process
Committee can take a decision regarding their eligibility."
16. On the earlier date of hearing, we did fnd some
substance in the contention raised by learned Senior Advocate
for the Petitioners that Clauses 5.1, 5.2 of the G.R. dated
January 15, 2021 lacked clarity in as much as the GR did not
present a clear picture whether it excluded the contractors
who had carried out transportation work only in the frst phase
of the two-phase transportation work, without undertaking the
transportation work related to the second phase of the
scheme, if they otherwise satisfed all other criteria of
eligibility. Learned Advocate General had then requested for
some time for deliberating with responsible Ofcers of the
State Government on this issue and come out with a
clarifcation. In all fairness, the State Government has issued a
clarifcation which was handed over to this Court and which
reads thus :-
Clarifcation
(on behalf of the State)
"In respect of interpretation of the Clauses 5.1 and 5.2
of the Government Resolution dated 15 th January, 2021 and
the consequent RFP issued on 21st June, 2021, it is clarifed on
behalf of the State as under.
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
The eligibility criteria specifed in Clauses 5.1 and 5.2 of
the Government Resolution dated 15 th January, 2021 and the
consequent RFP issued on 21st June, 2021 does also include
the contractors, if any, with the experience set-out hereunder,
provided that they satisfy all other criteria of eligibility, spelt
out in the aforesaid two documents, including the aforesaid
two clauses 5.1 and 5.2
"Those contractors who have carried out transportation
work only in the frst phase of the two-phase
transportation work, without undertaking the
transportation work related to the second phase, of the
scheme, which is the subject matter of the exercise in
issue."
According to the State, not a single such contractor is
available, and the aforesaid clarifcation is merely academic in
nature. However, if any tenderer fts into the aforesaid entire
description, such tenderer will not be disqualifed, only on the
ground that such tenderer has the experience of
transportation of only the frst phase and not of the second
phase, of the two-phases execution of the scheme, which is
the subject matter of the exercise in issue."
We fnd that this clarifcation resolves a part of
Petitioners' grievance. The clarifcation is accepted.
17. Before we deal with the rest of the submissions, it will be
proftable to refer to some of the decisions of the Hon'ble
Supreme Court which have a material bearing on the controversy.
In Tata Cellular vs. Union of India 6 Their Lordships laid down
as under :
"1. The modern trend points to judicial restraint in
administrative action.
2. The Court does not sit as a Court of appeal but merely
reviews the manner in which the decision was made.
6 (1994) 6 SCC 651
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
3. The Court does not have the expertise to correct the
administrative decision. If a review of the administrative
decision is permitted it will be substituting its own decision,
without the necessary expertise which itself may be fallible.
4. The terms of the invitation to tender cannot be open to
judicial scrutiny because the invitation to tender is in the realm
of contract. Normally speaking, the decision to accept the
tender or award the contract is reached by process of
negotiations through several tiers. More often than not, such
decisions are made qualitatively by experts.
5. The Government must have freedom of contract. In other
words, a fair play in the joints is a necessary concomitant for an
administrative body functioning in an administrative sphere or
quasi-administrative sphere. However, the decision must not
only be tested by the application of Wednesbury principle of
reasonableness (including its other facts pointed out above) but
must be free from arbitrariness not afected by bias or actuated
by mala fdes.
(6) Quashing decisions may impose heavy administrative
burden on the administration and lead to increased and
unbudgeted expenditure."
18. In Michigan Rubber (India) Limited (supra) the Hon'ble
Supreme Court held thus :
"(c) In the matter of formulating conditions of a tender
document and awarding a contract, greater latitude is required
to be conceded to the State authorities unless the action of
tendering authority is found to be malicious and a misuse of its
statutory powers, interference by Courts is not warranted;
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
(d) Certain preconditions or qualifcations for tenders have to be
laid down to ensure that the contractor has the capacity and the
resources to successfully execute the work;"
19. Further in Meerut Development Authority vs.
Association of Management Studies and anr.7 the following
observations of Their Lordships are relevant :
"A tender is an ofer. It is something which invites and is
communicated to notify acceptance. Broadly stated it must be
unconditional; must be in the proper form, the person by whom
tender is made must be able to and willing to perform his
obligations. The terms of the invitation to tender cannot be open
to judicial scrutiny because the invitation to tender is in the
realm of contract. However, a limited judicial review may be
available in cases where it is established that the terms of the
invitation to tender were so tailor made to suit the convenience
of any particular person with a view to eliminate all others from
participating in the biding process.
The bidders participating in the tender process have no
other right except the right to equality and fair treatment in the
matter of evaluation of competitive bids ofered by interested
persons in response to notice inviting tenders in a transparent
manner and free from hidden agenda. One cannot challenge the
terms and conditions of the tender except on the above stated
ground, the reason being the terms of the invitation to tender
are in the realm of the contract. No bidder is entitled as a matter
of right to insist the Authority inviting tenders to enter into
further negotiations unless the terms and conditions of notice so
provided for such negotiations."
7 (2009) 6 SCC 171
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
20. In Monarch Infrastructure (P) Ltd. vs. Commissioner,
Ulhasnagar Municipal Corporation and others 8 Their
Lordships held that "the authority calling the tender is the best
Judge as regards conditions prescribed in the tender".
21. Having regard to the settled position of law, merely
because the Petitioners are already in the transport business and
had successfully executed contracts on behalf of the State
Government or others in the past, that does not confer a vested
right on them to do business with the Government or mandate
the Government to prescribe conditions which suit the
requirement of such Petitioners if otherwise the conditions are
not arbitrary or capricious. The authority calling tenders is the
best judge as regards conditions prescribed in the notice inviting
tenders. The authority, in formulating the conditions of the
tender document and awarding a contract, is required to be
conceded with a greater latitude. We do not fnd in the present
case the action of the tendering authority being actuated by
mala fdes or misuse of statutory powers, warranting interference
by this Court. The allegations that the conditions are tailor made
to suit the requirements of a few transport contractors are as
vague as they can be. There are no material particulars furnished
8 (2000) 5 SCC 287
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
justifying these allegations except for stating that the conditions
are tailor made to suit a few contractors and eliminate all others
from participating in the process. Such vague allegations of
favouritism made without any materials supporting the same
cannot assist the Petitioners.
22. It is well settled that the terms of invitation to tender being
in the realm of contract, the same cannot be open to judicial
scrutiny. Let us, nonetheless, examine the stand of the
Respondents justifying the policy. Section 3 of the National Food
Security Act, 2013 (hereinafter referred to as 'the FSA' for short)
gives a right to every benefciary belonging to eligible
households to receive food grains at a subsidized price under the
Targeted Public Distribution System (hereinafter referred to as
'the TPDS' for short). The TPDS is a system for distribution of food
grains and essentials to ration card holders through fair price
shops. Under the provisions of the FSA read with the provisions of
the Essential Commodities Act, 1955, the State Government is
required to undertake necessary reforms in the TPDS, which
includes doorstep delivery of food grains to fair price shops. The
State Government had to undertake reforms for application of
information and communication technology tools in order to
ensure transparent recording of transactions at all levels, and
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
also to prevent unauthorised movement or delivery of food
grains lifted from base depots belonging to FCI. Under the
provisions of the FSA, the State Government is responsible for
implementation and monitoring of the TDPS. It is the duty of the
State Government to take delivery of food grains from
designated base depots of FCI and seamlessly transport the
same through its authorised agencies at the door step of fair
price shops for further distribution. Further, the Public
Distribution System (Control) Order, 2015 also casts a duty upon
the State Government to make an arrangement for taking
delivery of food grains from base depots of FCI and ensure that
the same reaches fair price shops within the frst week of the
month for further distribution. Therefore, it is the duty of the
State Government to appoint an experienced and eligible
transport contractor who would provide efcient, quick and
quality service for transportation of food grains.
23. It is the stand of the State Government that it is
implementing the TPDS under the guidelines issued by the
Central Government; still the State Government is required to
deal with issues like black marketing of food grains,
misappropriation/ leakage of food grains and delay in delivery of
food grains. Therefore, the State Government has decided to
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
adopt advanced techniques like installation of geo mapping in
vehicles, installation of load cell, establishing district level
monitoring cells, strengthening supply chain, etc. The State
Government has taken a decision that the tracking and
monitoring devices will have to be installed by the transport
contractor at his own cost. Further, the State Government was in
need of efcient transport contractors who would supply the food
grains at the door step of fair price shops within the stipulated
time.
24. Paragraph 10 of the afdavit further records that the terms
and conditions of the tender for awarding transport contract
stipulated as per the policy dated November 26, 2012 and April
20, 2017 framed by State Government were of general nature.
Resultantly, it transpired that even some of the inexperienced
and inefcient transport contractors, who ultimately fulflled such
general terms and conditions, came to be awarded contracts. It
has been noticed that most of the transport contractors lacked
sufcient basic resources and hence, transportation of food
grains was not efciently carried out. Inefcient transportation of
food grains has led to termination of contracts in some Districts,
which led to further inconvenience. Therefore, in order to
overcome these difculties faced by the general nature of terms
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
and conditions of tender and also in order to strengthen the
transport system, the State Government has decided to frame
the present policy dated January 15, 2021 so as to stipulate
certain preconditions and qualifcations for tender to ensure that
the transport contractor has the requisite capacity and resources
to successfully and efciently execute the work.
25. The basic objectives of the new policy dated January 15,
2021 are then spelt out as under :
i. improving the basic rate of transportation (SOR) per
quintal of food grains under the TPDS ;
ii. curbing embezzlement and theft of food grains ;
iii. avoiding double handling of food grains ;
iv. reducing food grain leakage ;
v. increasing the storage capacity of warehouse, etc.
26. The afdavit further records that the State Government is
required to stipulate the terms and conditions of the tender
taking into consideration the local circumstances prevailing in
that particular State, more particularly when the nature of
transportation is intra State.
27. It is thus the stand of the State Government that the Food,
Civil Supplies and Consumer Protection department of the
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
State Government is actively working to ensure that foodgrains
reach the doorstep of fair price shops in stipulated time, i.e. frst
week of every month, so that further distribution continues as
per the schedule. Further, taking into consideration several past
experiences, where the State Government was required to deal
with misappropriation, leakage and delay in delivery of food
grains, the State Government has now decided to introduce
certain specifc eligibility conditions so as to select an efcient
transport contractor who has sufcient basic resources to
efciently and seamlessly execute transportation of food grains.
28. It is further stated that the eligibility conditions stipulated
in clause 5.1 of the impugned policy, like past experience of
transportation of food grains for a period of one year in
immediately preceding 5 years in Government/Semi Government
organization and work experience of having transported quantity
equivalent to 33% of the total quantity transported in that
particular district in last three years, is for selecting an efcient
transport contractor who has sufcient basic resources to
efciently and seamlessly execute transposition of food grains.
The reason why previous one year experience in supplying food
grains in Government or Semi Government organizations is
insisted is to ensure that the transport contractor has the
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
requisite experience of supplying food grains adhering to the
time constraints.
29. We do not fnd the condition of prescribing eligibility of 1
year immediately preceding 5 years in Government / semi
Government Organisation to be arbitrary or irrational. Merely
because the Petitioners do not have such experience can hardly
be a ground to compel the State Government to incorporate the
condition to suit the requirement of the Petitioners. Learned
Advocate General rightly placed reliance on the decision of this
Court in TPS Infrastructure Ltd. and another (supra) to
support this proposition.
30. While dealing with the contention of the Petitioners as to
why the eligibility prescribed is only that of "transport in food
grains" and "not other essential commodities" is that unlike other
essential commodities like cement, fertilizer etc., transportation
of food grains has to be done within a particular time schedule
and therefore, the State Government thought it ft to impose a
condition of a transport contractor who has a previous
experience in 'transportation of food grains'. This is the stand
taken to support the contention that the eligibility condition
stipulated in Clause 5.1 of the impugned G.R. is in no manner
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
unreasonable or arbitrary. We do not fnd anything unreasonable
with this condition.
31. Clause 13.3 of the GR clearly provides that the
responsibility of stacking, stitching, weighing and even
installation of a weighing machine in the truck in case of direct
delivery to the fair price shop is the responsibility of the bidder
and that the rates to be quoted have to factor in these things
also.
32. We do not fnd anything irrational or arbitrary in imposing a
condition by Clause 5.15 that in respect of those bidders whose
contracts have been terminated for default on their part during
the last fve years will not be eligible to bid.
33. Clause 5.16 of the impugned policy provides that the
transport contractor whose earnest money deposit has been
forfeited by any Government or Semi Government organization,
then such transport contractor would not be eligible to
participate. However, in order to give a fair chance to such
transport contractor, it has been further provided that such
transport contractor can fle a representation for deciding
eligibility with the tender process committee to show that the
forfeiture of earnest money deposit was not due to the fault of
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
the contractor. The object behind introducing Clause 5.16 of the
impugned policy is to disqualify defaulting or inefcient
contractors. We fnd that the condition stipulated in Clause 5.16
is not absolute and that such a contractor has been given a fair
chance to get his eligibility tested. We fnd substance in the
contention of learned Advocate General that there is no
discrepancy between Clause 5.16 and Clause 10.5 of the
impugned policy. Clause 5.16 relates to forfeiture of earnest
money deposit in the previous 5 years, wheres Clause 10.5
relates to forfeiture of earnest money deposit in the very same
tender process when the approved tenderer refuse or avoid to
enter into an agreement. We therefore do not fnd any substance
in the submission of the Petitioners that there is discrepancy
between Clause 5.16 and Clause 10.5 of the impugned policy.
34. In response to the contention that the impugned policy has
compromised free and fair competition, the stand is taken that
any transport contractor who satisfes the prescribed eligibility
conditions can participate in tender process. We fnd substance
in the contention of the Respondent-State that the process of
selecting the transport contractor by introducing certain specifc
eligibility conditions does not amount to putting an artifcial
barrier or compromising free and fair competition.
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
35. It is further pertinent to mention that in the afdavit-in-
reply the State Government has clarifed that the impugned
policy is just a guideline which lays down broad principles on the
basis of which tender has been foated. It is further stated that
the procedure of fling an application with the tender process
committee will be elaborately mentioned in the tender document
which will be foated pursuant to the impugned policy. Pursuant
to the impugned policy, the authority has issued the Request for
Proposal ('RFP' for short) dated 21.05.2021 which has also been
challenged. We do not fnd anything arbitrary or unreasonable
with the RFP which is issued in terms of the GR.
36. Learned Advocate General invited our attention to Clause
13.3 of the impugned policy which provides that it is the
responsibility of the transport contractor to weigh the food
grains, stacking and that these expenses have to be borne by the
transport contractor. In respect of those transport contractors
who directly supply food grains to the fair price shop, the
weighing scale has to be provided in the vehicle itself. Thus the
bidders are well aware of this process of standardization of the
transport contract and we fnd nothing arbitrary in stipulating
these conditions. The contention of learned counsel for the
Petitioners that the standardization process is arbitrary is without
any substance and can only be stated to be rejected for
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
ultimately it is the concerned authority which is best suited to
stipulate the terms and conditions of the tender.
37. The policy or tender conditions, thus do not appear to us to
be so unreasonable or arbitrary so as to warrant interference by
this Court. The conditions with which the Petitioners are
aggrieved cannot be held to be manifestly arbitrary only on the
count that the Petitioners stand excluded from bidding. The
Petitioners failed to make out a case of manifest arbitrariness or
perversity in the policy.
38. We see no reason to fault the stand of the State
Government that the conditions imposed further the object of the
National Food Security Act and the Essential Commodities Act for
the ultimate purpose is to improve and make the transport
system more efcient so as to ensure that food grains are
delivered at the doorsteps of the fair price shop within the
stipulated time. In any case, prescribing conditions is in the
realm of policy making, which, for reasons more particularly
noted above, we do not fnd to be arbitrary or actuated by
malafdes. Any transport contractor who satisfes the conditions
set out in the tender document is eligible to participate in the
bidding process. The Petitions are thus devoid of any merit and
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
deserve to be dismissed subject to the clarifcation issued by the
State Government and which we have recorded in the earlier part
of this judgment.
39. At this juncture it is pertinent to mention that learned
Advocate General invited our attention to Writ Petition No.1879
of 2021 in the case of Sublime Warehousing Pvt. Ltd.,
through its Director - Shri Kapil s/o Lalsing Thakur Vs.
State of Maharashtra through its Secretary, Department
of Food, Civil Supplies and Consumer Protection,
Mantralaya, Mumbai-32 fled at the Nagpur Bench of this Court
raising challenges similar to the ones raised in the present
Petitions. He pointed out that by an order dated 08.06.2021, this
Court by a reasoned order dismissed Writ Petition No.1879 of
2021. It is, therefore, his submission that on this ground alone
the present Petitions deserve to be dismissed. Learned counsel
for the Petitioners submitted that the decision in the case of
Sublime Warehousing Pvt. Ltd. cannot have any bearing on
the controversy raised in the present Petitions. It is pointed out
that what was under challenge before the Nagpur Bench was
Clause QC9 of the tender notice dated 19.05.2021. It is
submitted that even the Nagpur Bench in paragraph 4 has
observed that the Petition before it sought only quashing and
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
setting aside of the tender notice dated 19.05.2021 and did not
include any direction for quashing and setting aside of the G.R.
dated 15.01.2021. It is thus the contention of the Petitioners that
the decision of the Division Bench of this Court will not preclude
the Petitioners from raising a challenge to the G.R. dated
15.01.2021 by way of the present Petitions.
40. In the interest of justice, we thought it ft to examine the
contention of the Petitioners in this regard. At this juncture it
would be pertinent to reproduce the order dated 08.06.2021
passed in the case of Sublime Warehousing Pvt. Ltd. The
order reads thus :-
" Hearing is conducted through Video Conferencing and all
the learned Advocates agreed that the audio and visual
quality is proper.
2. Heard Shri Dhatrak, learned counsel for the petitioner.
By this petition, the petitioner has challenged some of the
conditions of the tender notice dated 19.05.2021 on the
ground that these conditions make a departure from the
conditions prescribed in earlier G.R. dated 20.04.2017 and
also on the ground that such modifcation of the conditions
has been done in order to debar certain parties and favour
some other group of contractors. The conditions to which an
exception has been taken are those as contained in Clauses
5.1, 5.2, 5.3, 5.5, 5.6 and 5.9 of the Government Resolution
dated 15.01.2021. On these grounds, the petitioner has
sought quashing and setting aside of the tender process
undertaken pursuant to E-tender notice dated 19.05.2021
issued by Secretary, Food, Civil Supplies and Consumer
Protection Department, State of Maharashtra. The petitioner
has also sought a further direction to the State to frame a
fresh policy informed by the principle of reasonableness so
that in future there would be a fair competition in the tender
process.
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
3. The tender notice dated 19.05.2021 contains a Clause
QC9 (page 102) which states that the bidder shall be bound
by all the terms and conditions set out in the tender notice
and the GR dated 15.01.2021.
4. The prayers made in this petition, however, seek only
quashing and setting aside of the tender notice dated
19.05.2021 and they do not include any direction for
quashing and setting aside of the G.R. dated 15.01.2021. In
the absence of any specifc challenge having been made to
the G.R. dated 15.01.2021, it would not be possible for this
Court to make any intervention in the tender process, on the
grounds raised by the petitioner.
5. Apart from what is stated above, even if we decide to
consider the exception taken to the Clauses 5.1, 5.2, 5.3, 5.5,
5.6 and 5.9 of the G.R. dated 15.01.2021, we fnd that it is
also not possible as nothing has been demonstrated before
us by the petitioner to enable us to take a view that these
conditions are arbitrary having been prescribed only to favour
certain group of contractors and exclude another group of
bidders. The objection raised is that these conditions are
diferent from the conditions prescribed in the earlier G.R.
dated 20.04.2017. Just because some modifcations of the
conditions have been made by the said Government and
some of the conditions contained in the earlier Government
Resolution have been given up, it could be no ground for a
prospective bidder like the petitioner to say that the changed
conditions are arbitrary. Something more will have to be
shown by such a person. He has to point out some rule, some
regulation, some criteria against which the newly prescribed
conditions go. But, such is not the case here. The petitioner
has not pointed to us any such rule or regulation or criteria
based upon which we could say that these conditions could
not have been prescribed at all. In fact, if we go through
these conditions, we fnd that apparently there is nothing
wrong in them. After all, prescription of conditions in a tender
notice is a matter of policy and in undertaking judicial review
of any policy matter, the Court has to be fully satisfed that
the policy so framed is patently against law or public interest
or manifestly arbitrary or is not workable. None of these
ingredients of an illegal or arbitrary policy is seen to be
present here.
6. Then, the conditions prescribed at one point of time
need to be reviewed by a policymaker after passage of
certain time due to change in the fact situations and
circumstances governing the subject. Depending upon the
facts and circumstances of a situation, policymaker has to
follow a course which in his opinion is best suited to deal with
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
the extant situation and therefore, need may arise for a
policymaker to give up some or all of the earlier conditions
and prescribe a few new or altogether new conditions.
7. Considering such responsibility of the policymaker, it
would be necessary for a person who seeks to challenge a
new policy to show to the Court as to how the policy goes
against the settled principles of law or any provisions
contained in any law or regulation or rule or as to how the
policy is unworkable or unfairly kills the competition. As
stated earlier, such is not the case here.
8. In the circumstances, we fnd no merit in the petition.
Petition stands dismissed. No costs."
41. No doubt Their Lordships in paragraph 4 observed that the
prayers made in that Petition seek only quashing and setting
aside of the tender notice dated 19.05.2021 and they do not
include any direction for quashing and setting aside of the G.R.
dated 15.01.2021. Further, undoubtedly, a reference is made in
the order that in the absence of any specifc challenge having
been made to the G.R. dated 15.01.2021, it would not be
possible for this Court to make any intervention in the tender
process, on the grounds raised by the Petitioner. However, a
reading of paragraph 2, 5, 6 and 7 of the order dated 08.06.2021,
makes it is clear that the Petitioner therein had also challenged
the tender notice after taking an exception to Clauses 5.1, 5.2,
5.3, 5.5, 5.6 and 5.9 of the GR dated 15.01.2021. Having
considered the exception taken by the Petitioner therein to the
said Clauses in the GR dated 15.01.2021, their Lordships
observed that the said conditions cannot be said to be arbitrary
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
having been prescribed only to favour certain group of
contractors and exclude another group of bidders. Even the
objection that the conditions prescribed by these Clauses are
diferent from the conditions prescribed in the earlier G.R. dated
20.04.2017 has been dealt with. This Court observed that only
because the conditions are modifed by the State Government by
issuing the impugned G.R. and some of the conditions contained
in the earlier G.R. have been given up, it could be no ground for
any prospective bidder to say that the changed conditions are
arbitrary.
42. We do not see any reason to take a diferent view than the
one taken by the Division Bench of this Court in the case of
Sublime Warehousing Pvt. Ltd. The only reason why we
heard the Petitioners at length is in view of the contention of
learned counsel that apart from the Clauses which were the
subject matter of challenge in the case of Sublime
Warehousing Pvt. Ltd., the Petitioners have also challenged
various other Clauses of the GR which were not the subject
matter in the case of Sublime Warehousing Pvt. Ltd.
43. Learned Advocate General also pointed out that the SLP
fled before the Hon'ble Supreme Court against the decision in
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
the case of Sublime Warehousing Pvt. Ltd. has been
dismissed. We thus fnd that not only the majority of the Clauses
which are the subject matter of challenge in this Petition are
dealt with in the case of Sublime Warehousing Pvt. Ltd. but
even a challenge to the decision of this Court in the case of
Sublime Warehousing Pvt. Ltd. has been dismissed by the
Hon'ble Supreme Court. In this view of the matter also, we see
no reason to interfere with the impugned decision in exercise of
our writ jurisdiction under Article 226 of the Constitution of India.
44. The Petitions (Writ Petition No.750 of 2021, Writ Petition
No.1008 of 2021, Writ Petition No. 1014 of 2021, Writ Petition No.
1015 of 2021, Writ Petition No. 1016 of 2021, Writ Petition No.
1017 of 2021, Writ Petition No.1019 of 2021 and Writ Petition No.
1021 of 2021) are accordingly dismissed.
45. Rule is discharged with no order as to costs.
Writ Petition Stamp No.11311 of 2021
46. Mr. Sunip K. Sen, learned counsel for the Petitioners,
pointed out that the Petitioners are registered Consumer Co-
operative Societies and/or Associations formed by ration shop
license holders and were authorised agents as defned under the
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
Maharashtra Foodgrains Rationing (Second) Order, 1966 for
transporting foodgrains and other materials to fair price shops in
Mumbai / Thane rationing area. It is the contention of learned
counsel that the impugned Government Resolution is issued only
to ensure that the contracts of the transport contractors
appointed under G.R. dated 25.04.2017 are continued thereby
ensuring the exclusion of the Petitioners from participating in the
tender process. It is the contention of learned counsel that the
Maharashtra Foodgrains Rationing (Second) Order, 1966
(hereinafter referred to as '1966 Order' for short) was issued by
the State Government with prior concurrence of the Central
Government for distributing food grains to cardholders through
fair price shops and transportation of foodgrains to these shop
from the FCI or Government godowns. The 1966 Order is
applicable for Mumbai - Thane Rationing Area (MTRA). It is the
submission of learned counsel that under the said order, a
transportation system has been introduced to transport
foodgrains from FCI godowns/Government godowns to fair price
shops through authorised agents by granting them a licence. The
Petitioner Society and like societies are formed by fair price shop
licence holders, who themselves transported food-grains to their
fair price shops under a licence granted by Respondent No.3 till
the year 2017. Learned counsel submitted that fair price shop
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
owners situated in the area of Mumbai and Thane alone were
granted licence for transportation unlike other areas and districts
where a diferent arrangement/method for transportation of
goods to the fair price shop existed. Thus, in rest of Maharashtra,
excluding Mumbai and Thane, foodgrains are supplied to fair
price shops only by transport contractors appointed by a new
tender process in terms of the policy decisions taken by the State
Government from time to time.
47. Learned counsel, therefore, submits that the Petitioners
have been transporting food grains and other ration items from
1966 to 2017 without any complaints or issues and it is unfair
and arbitrary on the part of the State Government to exclude the
Petitioners from participating in the tender process. In efect, it is
the contention of learned counsel that their right to carry the
business of transportation of food grains will be taken away with
a sole desire to exclude competition from persons such as the
Petitioners. Learned counsel submits that though the Petitioners
have the necessary experience to transport goods, the State
Government, by arbitrarily incorporating such conditions which
the Petitioners will never satisfy, has excluded them, which
exercise is done obviously with a view to favour some
contractors. It is the contention of learned counsel that the State
Government does not have power to exclude authorised dealers
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
from the business of transportation under the Essential
Commodities Act,1955 or the orders issued from time to time.
48. We do not fnd any force in the submissions of learned
counsel for the Petitioners. No doubt, under a licence, the
Petitioners were permitted to transport foodgrains from the Food
Corporation of India ('FCI')/Government godowns to fair price
shops in Mumbai and Thane from 1966 to 2017. That by itself will
not confer a vested right on the Petitioners to contend that only
the Petitioners should be permitted to transport food grains from
the FCI godowns to their fair price shops. We do not fnd anything
arbitrary if, for valid policy considerations, the State Government
decides to call for tenders from all concerned to transport food
grains subject to the fulfllment of the conditions mentioned in
the tender. For the reasons discussed earlier, while disposing of
connected Petitions, we have already held that as the terms of
invitation to the tender are in the realm of contract, the same
cannot be open to judicial scrutiny. It is not that the Petitioners
are excluded from participation in the tender process. Merely
because the Petitioners are transporting the food grains from
1966 to 2017, that by itself will not confer a vested right on the
Petitioners to contend that for all times to come, it is the
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
Petitioners only who should be granted a licence to transport
food grains.
49. The Essential Commodities Act, 1955 does not prohibit the
State Government from transporting food grains by issuing a
notice inviting tenders by imposing conditions which are best
suited in the larger public interest. We are satisfed from the
afdavit-in-reply fled by the State Government in Writ Petition
No.750 of 2021 and Writ Petition No. 1010 of 2021 about the
propriety of the reasons why the State Government felt it
necessary to impose stringent conditions in the matter of
transportation of food grains. Though the Petitioners made an
allegation that the impugned G.R. is issued with a view to
exclude competition and deprive the Petitioners from
participation, we fnd the averments in the Petition regarding
favouritism as vague as can be. There are no material particulars
in the Petition supporting the contention that the conditions are
tailor made to favour the existing contractors or with a view to
exclude the participation of the Petitioners. We are satisfed from
the stand of the State Government in the connected Petitions
that the policy is made to improve and modernise transportation
for ensuring efciency and timely distribution of food grains and,
as we have already held, the policy does not sufer from manifest
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
arbitrariness or is in any manner irrational. The exclusion of the
Petitioners from participating in the bid if they fail to satisfy the
eligibility, in the absence of the policy being arbitrary, whimsical
or perverse cannot be said to be unjustifed.
50. It is the contention of learned counsel for the Petitioners
that any regulation of transport is required to be done by way of
an order under Section 3 read with Section 5 of the Essential
Commodities Act, 1955 and not by way of a GR. This contention
needs only to be stated to be rejected. There is nothing in the
Essential Commodities Act or the orders referred to by the
Petitioners that prohibits the State Government from adopting a
method which is best suited for transportation of foodgrains
under the Essential Commodities Act, 1955. As discussed earlier,
under the various orders issued under the Act, it is also open for
the State Government to appoint Petitioners as Authorised
Agents for transportation of goods, but it is not that the State
Government can never resort to any other permissible mode of
transportation to efectuate the object for which the Essential
Commodities Act was brought into force.
51. As per the Petitioners' own showing, whilst the Petitioners
were authorised agents from 1966 to 2017, from 2017 onwards,
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
even for Mumbai and Thane districts transportation of foodgrains
was made after issuing notice inviting tenders from eligible
transport contractors. It is the Petitioners' own case that prior to
2017, for the rest of the State of Maharashtra excluding Mumbai
and Thane, the method of transportation was by foating tenders.
If in such circumstances, the State Government has taken a
policy decision to carry on transportation by foating tenders
even for Mumbai and Thane, we see no reason to interfere with
such a decision, more so, when we are satisfed that such
decision is not arbitrary, whimsical or capricious.
52. The Petition (Writ Petition Stamp No.11311 of 2021),
therefore, fails and is accordingly dismissed.
Writ Petition No.1010 of 2021
53. Mr. Nikhil Sakhardande, learned Senior Advocate for the
Petitioner, submitted that the Petitioner is a registered trade
union under the Trade Unions Act, 1926, established with an
object of protecting the rights and catering to the interest of its
members and labourers, who are organised under the
Maharashtra Mathadi, Hamal and Other Manual Workers
(Regulation of Employment and Welfare) Act, 1969 (hereinafter
referred to as 'the Mathadi Act' for short). It is the submission of
learned Senior Advocate that the provisions of the Act envisage
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
that the State Government should, by means of schemes, take
such steps as are essential to ensure protection of employment,
full utilisation of unprotected workers and strictly implement
utilisation of such workers in every scheduled employment. It is,
therefore, his submission that in terms of the 'Mathadi Act', it is
the responsibility of the State of Maharashtra to make provisions
for adequate supply of unprotected manual workers, and their
proper and full utilisation in such employment. Mr. Sakhardande
pointed out that prior to the issuance of the impugned G.R.,
lifting of food grains and essential commodities was permitted by
the State Government from designated depots of the 'FCI' to an
intermediate storage point at a State Government food storage
facility and delivery to fair price shops thereafter. It is submitted
that within the Vidarbha region itself, there are about 96 depots
owned and hired by FCI, whereas there are 514 storage facilities
of the State Government for 358 talukas in 36 districts. It is
submitted that 14 districts have only one FCI depot, 13 districts
have two FCI depots, whereas 19 districts have more than two
FCI depots. Mr. Sakhardande is essentially aggrieved by Clause
1.4 and 4.5 of the impugned G.R. dated 15.01.2021. He submits
that by virtue of the impugned G.R. which contemplates direct
transport of foodgrains under the Public Distribution System
('PDS') to fair price shops, this mode will be impacted and that, in
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
turn, will have a direct impact on the employment of Mathadi
workers as a result of elimination of handling of foodgrains under
the PDS at the State Government storage facilities, reducing the
requirement thereby of employment of Mathadi Hamals. It is the
submission of learned Senior Advocate that the National Food
Security Act, 2013 imposes an obligation on the State
Government to create, establish and maintain modern and
scientifc storage facility at district, taluka block levels for the
purpose of implementation of the PDS. This obligation is cast on
the State Government at the State level to ensure an unhindered,
smooth and regular supply of foodgrains at the respective fair
price shops. The object to be achieved is that the distance
between the fair price shop and the storage facility should be as
minimum as possible so as to achieve efciency and regularity as
also continuity in supply. It is his submission that such direct
transport is in contravention of the statute and the obligation
cast upon the State Government thereunder. It is, therefore,
urged that as a result of this new transportation methodology,
the use of State storage facilities is not only eliminated but the
same is contrary to the provisions of the National Food Safety
Act, 2013. It has the efect of drastically reducing employment of
Mathadi workers thereby frustrating the object for which the
Mathadi Act was enacted.
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
54. Learned Advocate General for the State, on the other hand,
invited our attention to the afdavit-in-reply fled on behalf of the
State Government afrmed by Mr. Sudhir D. Tungar, presently
working as Joint Secretary in the Department of Food, Civil
Supplies and Consumer Protection, Government of Maharashtra
and contended that by adopting the methodology envisaged in
the impugned G.R., it cannot be said that there is any
contravention of the provisions of either the National Food
Security Act, 2013 or the Mathadi Act.
55. The Mathadi Act was enacted by the State Government for
regulating the employment of unprotected manual workers
employed in certain employments in the State of Maharashtra
and to make provisions for their adequate supply, and proper and
full utilization in such employments, and for matters connected
therewith. The National Food Security Act, 2013 was enacted to
provide for food and nutritional security in human life cycle
approach, by ensuring access to adequate quantity of quality
food at afordable prices to people to enable them to live a life
with dignity and for matters connected therewith or incidental
thereto.
56. It is the stand of the State Government that the Food, Civil
Supplies and Consumer Protection Department is actively
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
working to ensure that foodgrains are distributed to benefciaries
of National Food Security Act, 2013 in an efcient manner.
Efective and efcient transportation of foodgrains is an essential
part of the 'PDS'. The afdavit fled by the State Government
states that it is the intention of the department to transport
wheat, rice, sugar and pulses from FCI warehouses to State
Government Godowns and from State Government Godowns to
Fair Price Shops within the stipulated timeline, so that the
foodgrain distribution exercise can be carried out in time. The
object behind the introduction of policy underlying the impugned
G.R. dated 15.01.2021 is to ensure that the foodgrains reach the
Fair Price Shops in stipulated time, i.e. frst week of every month,
so that the same can reach the end users, i.e. the benefciaries
who are mainly poor and lower strata of the society. The Central
Government issued order dated 20.03.2015 in exercise of powers
conferred under Section 3 of the Essential Commodities Act,
1955. The aforesaid order was issued, since it was found
necessary and expedient so to do for maintaining supply and
securing availability and distribution of an essential commodity,
namely, foodgrains, under the Targeted Public Distribution
System. It is the stand of the State Government that Clause 11
of the said order makes it obligatory on the part of the State
Government to devise suitable mechanism for transportation of
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
foodgrains from the Corporation godown to the intermediate
godown and the door-step delivery of foodgrains to fair price
shops with the rider that the State Government may also
transport foodgrains directly to fair price shops from FCI godowns
and ensure a door-step delivery to fair price shops. This order,
which is issued under the Essential Commodities Act, provides
that the State Government may devise a mechanism whereby
foodgrains can be transported from FCI godowns to fair price
shops directly. In the afdavit, in paragraph 9, it is stated that
the State Government has independently applied its mind before
framing the aforesaid policy and while doing so, has taken into
consideration the following factors, which would ultimately yield
various benefts. The same reads thus :-
"a) At present, except for direct transport, standardization
of grains is done when the grains reach the government
godowns at other places. This is done by placing a sack of
grains unloaded from a truck on a weighbridge to make it
weight 50 kg either by reducing the grains from the sack or
by adding grains in other bags to make it measure 50 kg.,
then it is sewn and stacked. During the said process, the
grains either are spilled or they get mixed with the soil.
The same grain is reflled in bags and sent to ration shops
for distribution. During standardization of grains, the
weight of the bags never comes to 50 kg. And the same is
always reduced by 2 to 3 kg. This lead to
pilferage/malpractice of grains at the level of godowns.
This would be clearly avoided if the food grains are
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
transported directly from the FCI godown to the Fair Price
Shops;
b) The cost of twine required for standardization of all
grains is to the tune of Rs.24 Crores. However, by way of
direct transport this cost of twine can be saved;
c) The State requires to incur an expenditure of
Rs.5,00,39,323/- per month and Rs.60,04,71,193/- towards
godown handling charges. However, by way of direct
transport system the State will save an amount of Rs.60.05
Crores. Thus, the State will be able to save total amount of
Rs.84 Crores. (24 Cr. + 60.05 Cr.);
d) Similarly, modernization and strengthening of public
distribution system saves resources, real-time savings in
transportation and handling of foodgrains due to
streamlining of the public distribution system, saving of
grain on account of pilferage in grains, by efcient
monitoring of the system foodgrains will be timely and
regularly distributed to the benefciaries;
e) The closure of warehouse level food standardization
system due to direct transportation will reduce FIRSTLY the
double handling of food grains, SECONDLY warehouse level
grain pilferage and THIRDLY grain leakage to a great extent
and will save administrative cost at the warehouse level;
f) With the increase in the scope of direct transport and
starting direct transport in the urban areas, more than 35
per cent i.e. about 28,549 metric tonnes of foodgrains will
no longer go to the government godowns. Therefore, the
storage capacity of government godowns will be increased
so also the cost of construction of new godowns will be
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
reduced. At present the average cost of construction of a
warehouse is Rs.24,213/- per metric ton. This means that
the construction of godown with a capacity of 31,538
metric tonnes could cost about Rs.76.36 crores. The
increased scope of direct transport will indirectly save on
these costs."
57. Having regard to the stand taken by the State
Government and the various factors taken into consideration
while framing of policy for transportation of food-grains, which
are essential commodities, we do not fnd the policy to be
unreasonable, arbitrary, malafde or sufering from non
application of mind. The decision taken by the State
Government is in the realm of policy making. The decision
cannot be said to be arbitrary or contrary to the provisions of
the National Food Security Act or the Mathadi Act. In order to
do away with pilferage/ malpractice in distribution of grains at
the level of the godowns that the decision has been taken to
transport the goods from FCI godown to the Fair Price Shops,
whenever possible. For the reasons stated in the afdavit, this
policy decision has been arrived at as the same is based on
materials and for considerations stated hereinbefore. The
decision cannot be said to be perverse. It is also not possible
for us to substitute our own opinion with that of the State
Government merely because another view is possible. There is
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
no warrant to exercise the power of judicial review, if otherwise
we fnd the policy decision to be reasonable and not arbitrary
and taken for valid consideration.
58. We do not fnd any substance in the contention of the
learned Senior Advocate that the policy is in contravention of
the provisions of the National Food Security Act, 2013 in any
manner. On the contrary, we fnd substance in the justifcation
given by the State Government that the new policy is in
consonance with and in furtherance of the provisions of the
National Food Security Act, 2013.
59. We also do not fnd force in the submission of the learned
Senior Advocate for the Petitioner that the object of the
Mathadi Act is in any manner defeated by doing away with
storage of foodgrains at State Government storage facilities as
a consequence of direct transportation. The State Government
has devised a mechanism for transportation of foodgrains in
terms of Clause 11 of the Central Government order dated
20.03.2015 under the Essential Commodities Act and for the
reasons stated hereinbefore. The object of this new
mechanism is transportation of goods from the Corporation
godown to the Fair Price Shops directly as far as possible. Such
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
policy cannot in any manner be said to be contrary to the
provisions of the Mathadi Act.
60. The Mathadi Act applies to employments specifed in the
schedule appended thereto. The Mathadi Act is enacted for
regulating the employment of unprotected manual workers. No
doubt some degree of inconvenience would be sufered by the
Mathadi workers as a result of reduction of loading/unloading
work at State storage facilities. However, it cannot be ignored
that the rights of the Mathadi workers have to be balanced
with the object for which transportation of foodgrains from FCI
godowns to Fair Price Shops is to be made directly. For the
reasons enumerated by the State Government, the reduction
of the State Government storage facility, if any, cannot be said
to be contrary to any provision of the Mathadi Act. The State
Government is duty bound to regulate the employment of
Mathadi workers in a scheduled employment. The G.R. does
not exclude the applicability of the Mathadi Act. In our opinion,
the G.R., as it stands, does not contravene any provisions of
the Mathadi Act.
61. In the event of the tender being issued in favour of the
successful bidder and upon issuance of work order, if the
1 & 2. wp 750-21 & ors. & wpst 11311-21.odt
transport contractor or any other person, contravenes the
provisions of the Mathadi Act, it is always open for the
aggrieved to seek their remedies against such infractions.
Keeping this liberty of the Petitioners open, we do not fnd any
substance in the Petition (Writ Petition No.1010 of 2021).
The Petition is accordingly dismissed. Rule stands discharged
with no order as to costs.
(M.S.KARNIK, J.) (S.C.GUPTE, J.)
