Wardha Zilla Contractor Kalyan ... vs State Of Maharashtra Through ...
2021 Latest Caselaw 12990 Bom

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

                               WRIT PETITION NO.2300/2021

 Wardha Zilla Contractor Kalyan Samiti,
 through its President, Kishor Manikchandra
 Mitakri, Occ. Contractor, R/o Krushna Nagar,
 Bachelor Road, Wardha, Dist. Wardha.                                           ..Petitioner.
          ..Vs..
 1.       State of Maharashtra,
          through its Secretary, Department of
          Public Works, Mantralaya, Mumbai - 32.

 2.       Chief Executive Officer, Zilla Parishad,
          Wardha, Dist. Wardha.

 3.       Executive Engineer, Works Department,
          Zilla Parishad, Wardha.                                             ..Respondents.
 ------------------------------------------------------------------------------------------------
          Mr. Tejas A. Kene, Advocate for the petitioner.
          Mr. A. A. Madiwale, A.G.P. for respondent No.1.
          Mr. Naresh M. Kolhe, Advocate for respondent Nos.2 and 3.
 ------------------------------------------------------------------------------------------------
                           CORAM :- SUNIL B. SHUKRE AND
                                            ANIL S. KILOR, JJ.

DATED :- 9.9.2021.

ORAL JUDGMENT (Per Sunil B. Shukre, J.)

Heard Mr. Tejas A. Kene, Advocate for the petitioner, Mr. A. A.

Madiwale, A.G.P. for respondent No.1 and Mr. Naresh M. Kolhe,

Advocate for respondent Nos.2 and 3. Rule. Rule is made returnable

forthwith. Heard finally by consent.

2. The only dispute involved in this petition is that whether the

petitioner which is an association of petty civil contractors engaged in

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the business of construction of roads and tarring of roads right in

saying that the condition No.3 of the tender document prescribing the

limit of 60 kilometers for situation of hot-mix plant from the place of

the work is inconsistent with the Government Resolution dated 24 th

August, 2018 or not.

3. Learned counsel for the petitioner submits that the condition

No.3 is inconsistent with the Government Resolution dated 24 th

August, 2018 while the learned counsel for respondent Nos.2 and 3

submits that it is not only in line with the Government Resolution

dated 24th August, 2018 but also in pursuance of the Government

Resolution dated 21st January, 2008. It is the submission of learned

counsel for respondent Nos.2 and 3 that tarring of road by using

bitumen requires availability of mixture of bitumen and gravel or

metal having certain degree of temperature and that is why this

mixture is produced by using hot-mix plant. He further submits that

as per Government Resolution dated 24th August, 2018, for petty

contractors condition of having their own hot-mix plant should not be

made mandatory and in the present case, it is not made mandatory.

He further submits that the Government Resolution dated 24 th August,

2008 prescribes that whenever a facility of availing of service of

hot-mix plant belonging to some other contractor and which is

situated away from the place of the work is allowed to be used by the

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petty contractor, it should be ensured by the employer of the

contractor that the temperature of the hot-mix produced by using

hot-mix plant is not lowered down during the transit period. This

Government Resolution, he further submits, gives discretion to the

employer of the contractor to stipulate the distance within which the

hot-mix plant may be situated so that the hot-mix material which is to

be used for laying bitumen surface is not compromised on quality in

terms of its temperature. Therefore, according to him, there is no

substance in the petition.

4. On going through the Government Resolution dated 24 th

August, 2018 and also the Government Resolution dated 21 st January,

2008, we find that there is great substance in the submissions of

learned counsel for respondent Nos.2 and 3 and there is no substance

in the submissions of learned counsel for the petitioner.

5. The Government Resolution dated 24 th August, 2018 lays down

that in case of petty contractors who are to be awarded work valued at

less than ₹ 50,000,00/- the condition of these contractors having own 50,000,00/- the condition of these contractors having own

hot-mix plant should not be insisted upon and that means these

contractors could be permitted to use hot-mix plant which are situated

at some distance from the place of work and which may be belonging

to some other persons. But, given the nature of material which is

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required to be employed for laying of bitumen surface over the roads,

there can be no compromise with temperature of the hot-mixture

which is to be laid over the road. Maintenance of certain degree of

such hot-mixture would be possible only when the hot-mixture

produced at a different place is brought to the place of work within

such time as would not result in great loss of temperature. This is the

reason why the Government Resolution dated 21 st January, 2008

insists upon situation of hot-mix plant not beyond certain distance,

which limit is to be fixed, depending upon the facts and circumstances

of the each case, by the employer of the contractor. Using this

discretion conferred upon respondent Nos.2 and 3 by the Government

Resolution dated 21st January, 2008 the impugned condition has been

prescribed in the tender notice and having regard to the rationale of

the condition, we find that the condition is not arbitrary, not

unreasonable and not restrictive of the fundamental right of the

members of the petitioner association to carry on their occupation.

The petition being devoid of merit, stands dismissed. Rule is

discharged. No costs.

                               JUDGE                             JUDGE



 Tambaskar.