Berojgaranchi Kshitij Nagrik ... vs Amravati Municipal Corporation, ...
2021 Latest Caselaw 12845 Bom

 Judgment                                1                             wp3030.21.odt




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         NAGPUR BENCH, NAGPUR.


                          WRIT PETITION NO. 3030 OF 2021

 Berojgaranchi Kshitij Nagrik
 Seva Sahakari Sanstha, Amravati
 having Registration No.ATI/GENERAL/
 0/700/06, through its President,
 Dinesh Gahalod, having Office at
 Prabhat Colony, Shilangan Road,
 Amravati.
                                                              .... PETITIONER.

                                   // VERSUS //

 1. Amravati Municipal Corporation,
    Amravati, through its Commissioner
    having Office at Dadasaheb Khaparde,
    Rajkamal-Jaistambh Flyover, Amravati,
    Maharashtra - 444 601.
    E-mail : [email protected]

 2. ITCONS E-SOLUTIONS PVT. LTD.
    through its authorised person having
    Office at 3rd Floor, B-10, Bajaj Bhawan,
    Jamnalal Bajaj Marg, Next to Rajni
    Gandha Square, Sector-03, Noida-
    201301, Uttar Pradesh
    E-mail: [email protected]

                                                           .... RESPONDENTS.

  ______________________________________________________________
 Shri Firdos Mirza, Advocate for Petitioner.
 Shri S.P. Dharmadhikari, Sr. Advocate a/b Shri R.D.Dharmadhikari,
 Advocate for Respondent No.1.
 Shri P.W.Mirza, Advocate for Respondent No.2.
 ______________________________________________________________




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  Judgment                                  2                              wp3030.21.odt




                           CORAM :    SUNIL B. SHUKRE AND
                                      ANIL S. KILOR, JJ.

                           DATED :    SEPTEMBER 08, 2021


 ORAL JUDGMENT : (Per : Anil S. Kilor, J.)


 1.                Heard.

2. RULE. Rule made returnable forthwith. Heard finally by

consent of the learned counsel for the parties.

3. Rejection of the bid of the petitioner-society for supply of

skilled and un-skilled manpower is under challenge in this petition.

4. The brief facts, emerge from the present petition, are as

follows:

5. The petitioner-society is engaged in providing labour and

accordingly in response to the tender notice issued by respondent

No.1, inviting bids for supply of skilled and un-skilled manpower, the

petitioner society submitted its bid.

6. However, the petitioner was disqualified for the reason that

the rates quoted by the petitioner for overhead fee/charges were

quoted in breach of the conditions of tender.

Judgment 3 wp3030.21.odt

7. Thus, the disqualification of the petitioner is the subject

matter of the present petition.

8. We have heard learned counsel for the respective parties.

9. Shri Firdos Mirza, learned counsel appearing for the

petitioner-society submits as under:

a) The condition, not to quote rates in fraction was in respect of the 'Service Charges' and not for 'Overhead Fees'. Therefore, the disqualification for the reason that the petitioner has quoted rates for 'overhead fees' in fraction, is arbitrary.

b) Though the petitioner's bid was lowest and advantageous for Corporation, the same was rejected contrary to the provisions of Section 73(c) read with Rule 2(2), Chapter V of Schedule D of the Maharashtra Municipal Corporations Act, 1949.

c) Respondent No.1, while framing the conditions of the tender, acted in a calculated manner so as to favour the respondent No.2.

10. Per contra, learned Senior Advocate Shri S.P. Dharmadhikari

assisted by Shri R.D.Dharmadhikari, learned counsel appearing for

respondent No.1-Amravati Municipal Corporation strongly opposes the

present petition and submits as under:

  Judgment                                     4                               wp3030.21.odt




        a)     In the tender notice, it was made clear that the 'Service
               Charges'        includes   'Overhead    Fee'    and      'Uniform        Fee'.

Therefore, the rates in fraction, were not permissible even for 'Overhead Fee'.

b) The provisions of Section 73(c) read with Rule 2(2), Chapter V of Schedule D of the Maharashtra Municipal Corporations Act, 1949 would come into play only while considering the bids of the qualified bidders. Whereas, because the petitioner's bid was not accepted, the said provision would not come to help the petitioner in this case.

c) The allegation that the tender conditions were framed in a manner that it would disqualify the others and help the respondent No.2, is baseless. To establish such allegations, requires evidence and this Court in writ jurisdiction cannot go into such disputed question of facts.

11. Shri P.W.Mirza, learned counsel appearing for the

respondent No.2 has reiterated the contentions raised by the

respondent No.1 and prays for dismissal of the present petition.

12. To consider the rival contentions of the parties, we have

perused the record and the relevant provisions of law.

Judgment 5 wp3030.21.odt

13. The controversy involved in the present petition revolves

around the tender condition relating to Service Charges. It would be

therefore, appropriate to refer to the said condition for proper

appreciation, which reads thus:

mPpf'k{khr euq";cG %& fdeku info/kj] infodk ¼dks.kR;kgh 'kk[ksrhy½ v-dz- osru rif'ky jDde 1- eqGosru [email protected]& 2- fo'ks"k HkRrk [email protected]& 3- ,dq.k A 19][email protected]& 4- Hkfo"; fuokZg fu/kh 12-5% ,dq.k A jDdesoj [email protected]& 5- ESIC [email protected]& ,dq.k A jDdesoj [email protected]& 6- GST 18 % ,dq.k AA jDdesoj [email protected]& 7- ,dq.k B 26][email protected]& 8- lfOgZl pktsZl ¼gs lfOgZl pktsZl ojhy v- dz-7 e/khy ,dq.k 1- lsok iznku 'kqYd jdesojhy izfr'kr e/;s ?;ko;kps vkgs- lnj lfOgZl pktsZl lsok %... 2- x.kos'k iqjoBk/kkjdkaus euq";cGkph lsok l{ke] lek/kku dkjd] fdQk;r'khj 'kqYd %... 3- o fouklk;kl v'kk Lo:ikph ekfld rRokoj iznku djko;kph vkgs- ojdM (Overhead) rlsp iqjoBk /kkjdkaus izFke deZpk&;kauk ekfld osru iznku d:u uarj ns;d euik dk;kZy;kr izfriqrhZ djhrk lknj djko;kps vkgs- 'kqYd %...

                     vkarkjhd dkj.kkLro euik dMqu osru izfriqrhZl foyac >kysY;k       (lnj 'kqYdke/;s
                     fLFkrhr iqjoBk /kkjd fdeku rhu efgU;kps osru iznku dj.;kph       vkirdkyhu oS|
                     {kerk CkkGxqu vlkok½                                             dh; enr o
                                                                                      brj rRle lqfo/
                                                                                      kkapk   lekos'k
                                                                                      vkgs-

fVi%& mijksDr v-dz- 1 rs 7 e/khy ri'khy gk Bsdsnkjkus deZpk&;kauk |ko;kps osru o HkRrs rlsp laca/khr O;oLFkkiukdMs Hkjko;kps 'kqYd] HkRrs o dj ;kpk vkgs- ;k osru o HkRrs ;kpk ykHk laca/khr deZpk&;kl feG.ks ca/kudkjd vkgs- R;keqGs v-dz-1 rs 7 ;sFkhy ri'khy gk u cny.kkjk vlqu Bsdsnkjkl fuohnk Hkjrkauk R;kr cny djrk ;s.kkj ukgh-

v-dz- 8 ;sFks fufonk /kkjdkus da=kVh euq";cGkpk iqjoBk dj.;klkBh ?ksm bfPNr vlysY;k Service Charges VD;kr o jdesr ueqn djkok] ijarq jdespk vkdMk viw.kkZdkar ulkok- fuohnk /kkjdkauk lqfpr dj.;kr ;srs dh] vafre ik= fufonspk fu.kZ; dehr deh jDdesP;k fdaok VDdsokjhP;k vlysY;k lsok 'kqYdkoj o R;krhy milsok 'kqYdkP;k vk/kkjkoj dj.;kr Bjfo.;kr ;sbZy- ojhy rhu gh rDR;krhy v-dz- 8 e/khy rhl&;k jdkU;krhy dz- 1 ps lsok 'kwYd tj fufonk kkjdkaps leku vlsy rj ;kp jdkU;krhy dz-2 pk fopkj dj.;kr ;sbZy- iwUgk dz-

Judgment 6 wp3030.21.odt

2 ps lq?nk leku nj vlrhy rj ;kp jdkU;krhy dzekad 3 fopkj dj.;kr ;sbZy- lnj jdkU;krhy dz- 1] 2 o 3 ;kaph ,dq.k csjht ojhy rDR;krhy v-dz- 7 e/khy B P;k 1% is{kk jDde deh ulkoh- ;k mijgh vafre ik= fufonk /kkjd Bjfork ;s.ks 'kD; u >kY;kl [kkyhy v- dz-28 e/khy rDR;kizek.ks i)r oki:u vafre ik= fufonk /kkjd Bjfo.;kr ;sbZy- vkFkhZd fufonspk fyQkik dz-2 njkP;k fyQkI;ke/;s mijksDr njkP;k rDR;kP;k lwpusizek.ks Hk:u fufonk/kkjdkP;k Lok{kjh lghr lknj djko;kpk vkgs-** (sic.)

14. After going through the aforesaid items tabulated and a

note at the bottom of the same, make it clear that 'Service Charges'

includes 'Service Providing Fee', 'Uniform Fee' and 'Overhead Fee'. In

that view of the matter, the condition put in the note that while quoting

the rates in respect of service charges the rates shall not be in fraction,

applies to all the three items i.e. (i) Service Providing Fee, (ii) Uniform

Fee and (iii) Overhead Fee.

15. Admittedly, while quoting the rates relating to overhead

charge, the petitioner has quoted Rs.264.51 i.e. in fraction and as such

it is in breach of the conditions of the tender.

16. We will now move to the other contention as regard the

provisions of Section 73(c) as well as Rule 2(2) Chapter V of Schedule

D of the Maharashtra Municipal Corporations Act, 1949, which are

reproduced hereunder:

"73. Power to Commissioner to execute contracts on behalf of Corporation.

With respect to the making of contracts under or for any purpose of this Act, including contracts relating to

Judgment 7 wp3030.21.odt

the acquisition and disposal of immovable property of any interest therein, the following provisions shall have effect, namely.-

(a) ...

(b) ...

(c) no contract, other than a contract relating to the acquisition of immovable property or any interest therein or any right thereto, which will involve an expenditure exceeding rupees twenty-five lakhs but not exceeding rupees fifty lakhs shall be made by the Commissioner, unless the same is previously approved by the Mayor. However, the total amount of all contracts approved by the Mayor shall not exceed rupees two crores and fifty lakhs during a year. Subject to the above, for any contract which involves an expenditure in excess of the amount as specified by the State Government, by notification in the Official Gazette, from time to time, the previous approval of the Standing Committee shall be necessary and different amount may be specified in respect of different classes of Corporations."

Rule 2(2) Chapter V of Schedule D reads as under :

"2. Tenders to be invited for certain contracts. (1) ....

(2) The Commissioner shall not be bound to accept any tender which may be made in pursuance of such notice, but may accept, subject to the provision of clause (c) of section 73, any of the tenders so made which appears to him, upon a view of all the circumstances, to be the most advantageous;"

17. It is clear from the language of the aforesaid provisions

that it will apply only in respect of qualified bids. Furthermore, while

considering qualified bids the Commissioner may accept any of the

tenders which appears to him, upon a view of all the circumstances to

be most advantageous.

Judgment 8 wp3030.21.odt

18. However, in this matter, as the petitioner was disqualified,

the said provision will not come to rescue the petitioner. Accordingly,

we reject the said contention.

19. We further find substance in the submission of the learned

Senior Advocate Shri S.P.Dharmadhikari that, to establish the allegation

that the tender conditions were made in a calculated manner,

evidence would be required and in writ jurisdiction this Court cannot

go into the disputed question of facts.

20. We, accordingly, do not find any substance in the present

petition, hence, we pass the following order:

The writ petition is dismissed. No order as to costs.

                   ( ANIL S. KILOR, J )           ( SUNIL B. SHUKRE, J.)

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