Bombay High Court
Nilesh Suresh Kshatriya And ... vs The State Of Maharashtra And ... on 10 August, 2022
Bench: Mangesh S. Patil, Sandeep V. Marne
.. 1 .. WP. No.8597.2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8597 OF 2019
1. Nilesh Suresh Kshatriya
Age : 44 years, Occu : Business,
R/o. B. No. 31, Sunit, Ramkrupa,
(Mhada) Colony Opp. Pratap
Nagar, Durgah Road, Kranti Chowk,
Aurangabad.
2. Bhavesh Bipinchandra Saraf
Age : 45 years, Occu : Business,
R/o. Plot No.31-B Krishna Gulab
Near Meena Taj Thakre Hall, Swar
Sangam Society New Shreya Nagar,
Aurangabad
3. Kamlesh Upendra Javeri
Age : 32 years, Occu : Business,
R/o. Opp. Jagrut Hanuman Temple,
Flat No.2 Madhav Apartment,
Pandariba, Aurangabad
4. Anil Bhagwanrao Khandalkar
Age : 52 years, Occu : Business,
R/o. S.B. Colony, Aurangpura,
Aurangabad. .. Petitioners
Versus
1. The State of Maharashtra
General Administration Department,
Mantralay Mumbai
2. Municipal Corporation, Aurangabad
through its Commissioner
3. Standing Committee,
Municipal Corporation, Aurangabad
::: Uploaded on - 10/08/2022 ::: Downloaded on - 11/08/2022 12:28:10 :::
.. 2 .. WP. No.8597.2019
4. Dreams Creation Advertising
Through its Sole Proprietorship,
Mr. Shaikh Habib s/o. Shaikh Pasha
Age : Major, Occu : Business,
Having its registered address at,
Plot No.379, Cord Road Near Janseva
Kirana Store, Samta Nagar, Aurangabad.
5. Future Media Advertising
Through its Partner
Mr. Shaikh Habib s/o. Shaikh Pasha,
Age : Major, Occu : Business,
Having its registered address at
Plot No.379, Cord Road Near Janseva
Kirana Store, Samta Nagar, Aurangabad. .. Respondents
...
Mr. R.F. Totala, Advocate for the Petitioners
Mr. A.S. Shinde, AGP for Respondent - State
Mr. J.R. Shah, Advocate for Respondent Nos.2 & 3
Mr. Subodh P. Shah, Advocate for Respondent No.4
Mr. Anandsingh Bayas, advocate for respondent no.5
...
CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
RESERVED ON : 02-08-2022
PRONOUNCED ON : 10-08-2022
JUDGMENT (PER SANDEEP V. MARNE, J.) :
1. Heard. Rule. It is made returnable forthwith. Learned
AGP Mr. A.S. Shinde, learned advocate Mr. J.R. Shah, learned
advocate Mr. Subodh Shah and learned advocate Mr. Anandsingh
Bayas waive service. At their joint request, the matter is heard finally
at the admission stage.
.. 3 .. WP. No.8597.2019
2. The present petition is filed by four petitioners
challenging the decision of the respondent - Corporation in awarding
contract for a period of 30 years as well as the agreement dated
24.11.2017 executed by it in favour of respondent nos.4 and 5.
Further prayer is made seeking writ of mandamus to direct the
respondent - Municipal Corporation to invite e-tender for future
period for the work of installation of hoardings, uni-poles and
collection of taxes in accordance with the Government Resolution
dated 26.11.2014.
3. The respondent - Municipal Corporation had invited
proposals for expression of interest vide advertisement dated
19.11.2016 for the following five works:
(I) Submission of proposal for hoardings at lands / buildings
owned by the Municipal Corporation.
(II) Installation of direction indicator gantries in the newly
developed areas.
(III) Installation of bus stops for bus services of Municipal
Corporation.
(IV) Development of spaces below flyovers and development of
Islands.
(V) Conducting survey in respect of advertisements on commercial
hoardings, boards and kiosks except display boards on shops
and recovery of tax thereon.
.. 4 .. WP. No.8597.2019
4. It is an admitted position that petitioner no.1
participated in the process of invitation of proposals for expression of
interest in respect of various works. It appears that the proposals of
petitioner no.1 were rejected on technical grounds. Petitioner no.1
did not challenge rejection of his proposals and acquiesced in such
rejection.
5. The respondent - Municipal Corporation received
proposals from eligible bidders in respect of the works at serial nos.
(I) and (V). The general body of the Municipal Corporation adopted
resolution no.1291 in its meeting held on 19.09.2017 and resolved to
award the work at Sr. No.(I) to respondent no.4 and the work at
serial no.(V) to respondent no.5. Accordingly, approval was granted
by the general body for award of work for 30 years on the basis of the
demands of respondent nos.4 and 5. The Standing Committee of the
Municipal Corporation thereafter adopted resolution no.239 in its
meeting held on 22.12.2017 and granted financial approval for
award of respective works to respondent nos.4 and 5.
6. Accordingly, agreements came to be executed by
respondent - Municipal Corporation in favour of respondent nos.4
and 5 on 24.12.2017 regarding the respective works.
.. 5 .. WP. No.8597.2019
7. The present petition came to be filed by the petitioners
on 05.07.2019 challenging the aforesaid decision of the Municipal
Corporation in awarding the work for 30 years as well as the
agreements executed with respondent nos.4 and 5 on 24.11.2017.
The main objections of the petitioners are that no tenders were
invited before awarding the work, that the work could not have been
awarded for a long period of 30 years, that the contracts have not
been signed by the Municipal Commissioner as required under
Section 73 of the Maharashtra Municipal Corporations Act, 1949 and,
that the Municipal Corporation has incurred losses by award of works
to respondent nos.4 and 5.
8. Before adverting to the merits of the matter, we put
across to Mr. R.F. Totala, learned advocate appearing for the
petitioners as to how the petitioners have locus standi to file the
petition and whether this Court would be justified in interfering in
the matter on account of delay and latches on the part of the
petitioners. Needless to say that these two objections are specifically
taken not only by respondent - Municipal Corporation, but also by
respondent nos.4 and 5.
.. 6 .. WP. No.8597.2019
9. With regard to the issue of locus standi, Shri. Totala
submitted that the petitioners are tax payers and are interested in
ensuring that the Municipal Corporation does not award any contract
by incurring losses. So far as the participation of petitioner no.1 in
the contract awarding process is concerned, Shri. Totala submitted
that respondent no.1 is not interested in acceptance of his bid or
award of work to him. He submitted that respondent no.1 has also
filed the present petition in common interest with respondent nos.2
to 4 to ensure that the respondent - Municipal Corporation does not
wrongfully award work by incurring losses.
10. He invited our attention to para no.4 of the rejoinder
filed by the petitioners, which reads thus:
"4. I say and submit that, it is alleged that
Petitioners are not having locus to file the petition, are
absolutely incorrect. It is clearly stated in para no.1 of the
petition that, they are citizens and also doing the same
business, more so they are the tax payers and any action
which affects the financial rights of corporation in that
circumstances they are having the locus to challenge the
illegal action, more so, petitioner no.1 has participated in
the tender process and after getting the knowledge filed
the present petition which is perfectly maintainable."
11. With regard to the issue of delay and latches,
Shri. Totala invited our attention to para no.3 (v) of the petition,
which reads thus:
.. 7 .. WP. No.8597.2019
"3 (v). Petitioners say and submit that, he has noted in the
market that some agency has started erecting the hoardings, Uni
Poles and therefore petitioner approached to his lawyer and filed
an application under RTI and reply of the same was received by
respondent - AMC, on 18.04.2019."
12. He also invited our attention to para no.3 of the
rejoinder which reads thus :
"3. I say and submit that, the points are raised about delay
and latches in filing the petition but it is specifically mentioned
in point no.v that, petitioner received the reply on 18 th April
2019 to his application filed under RTI Act, 2005, and
immediately writ petition is filed on 4th July 2019 and therefore
there is no question of any delay and latches more so the
impugned agreement which is challenged is in continuation for
the period of 30 years from the date of signing of the agreement
and it is signed on 19.01.2018 and as such the cause is in
continuation."
13. In short, the submission of the petitioners on the point of
delay and latches is that the petitioners became aware of the work
being awarded to respondent nos.4 and 5 and illegality in the process
only after they received the reply on 18.04.2019 and accordingly the
petition filed on 05.07.2019, cannot be said to be barred by the
principles of delay or latches.
14. Mr. J.R. Shah appearing for respondent - Municipal
Corporation, Mr. Subodh Shah appearing for respondent no.4 and
Mr. Anandsingh Bayas appearing for respondent no.5 have also made
detailed submissions on both the points of locus of the petitioners as
.. 8 .. WP. No.8597.2019
well as delay and latches.
15. So far as the first issue of locus of the petitioners is
concerned, we find the combination of four petitioners for filing of
the present petition rather strange. It is beyond comprehension as to
how petitioner no.1, who participated in the process and whose bid
was rejected, can file a joint petition with petitioner nos.2 to 4 who
had not participated in the process. Since petitioner no.1 participated
in the process, he obviously has personal interest in the matter. So
far as petitioner nos.2 to 4 are concerned, their interest has been
projected as akin to public interest. Therefore, filing a joint petition
by one petitioner who has personal interest in the matter with 3 other
petitioners having alleged public interest is something which cannot
be countenanced.
16. Even the theory of alleged public interest of petitioner
nos.2 to 4 appears unbelievable in view of specific averment made in
para no.4 of the rejoinder, "it is clearly stated in para no.1 of the
petition that, they are citizens and also doing the same
business ..........".
17. Thus, petitioner nos.2 to 4 also appear to have private
interest with petitioner no.1 with regard to the subject matter
.. 9 .. WP. No.8597.2019
involved in the petition. In fact, during the course of submissions,
Mr. Totala admitted that on account of award of works to respondent
nos.4 and 5 the business of the petitioners has been affected.
Therefore, it is difficult to believe that any of the petitioners have any
public interest in filing the present petition.
18. Once it is held that none of the petitioners have public
interest in filing the present petition, it becomes imperative that the
petitioners prove their locus for filing the present petition. Since
petitioner nos.2 to 4 did not participate in the contract process, they
do not have any locus in challenging award of the works to
respondent nos.4 and 5. So far as petitioner no.1 is concerned, even
though he participated in the contract process, Shri. Totala has
specifically clarified during the course of his submissions that
petitioner no.1 is not interested in award of the works in his favour.
Thus, the aspect of participation of petitioner no.1 in contract process
is sought to be disconnected by the petitioners themselves with the
prayers sought in the petition. Therefore, even petitioner no.1 would
have no locus to file the present petition.
19. It has been submitted by Shri. Subodh Shah, advocate
appearing for respondent no.4 that petitioner nos.2 to 4 are proxies
set up by petitioner no.1 to prosecute his private interest in the
.. 10 .. WP. No.8597.2019
matter of award of works to respondent nos.4 and 5. This contention
appears to be believable on account of the fact that the
correspondence prior to the filing of the present petition is made
solely by petitioner no.1. As observed earlier, Shri. Totala has
submitted before us that on account of award of works to respondent
nos.4 and 5, business of petitioner nos.2 to 4 has been affected. This
leaves no room for doubt that petitioner no.1 has added petitioner
nos.2 to 4 only to set up the case of public interest when in fact not
only petitioner no.1 but even petitioner nos.2 to 4 have private
interest in the subject matter involved in the petition.
20. We, therefore, hold that the petitioners do not have even
remote locus for setting up a challenge to the award of the works in
favour of respondent nos.4 and 5.
21. Coming to the issue of delay and latches, the defence
sought to be put forth by Shri. Totala about award of contracts to
respondent nos.4 and 5 only on 18.04.2019, has been successfully
demolished by the Counsels appearing for respondent nos.4 and 5 by
inviting our attention to letter dated 03.08.2018 of the Ultra
Outdoors Private Ltd., addressed to respondent no.5. Petitioner no.1
is the proprietor of Ultra Outdoors Private Ltd. Petitioner no.1 made
an enquiry with respondent no.5 on 03.08.2018 about the amount of
tax payable in respect of the sign board of one of his clients. Thus, on
.. 11 .. WP. No.8597.2019
03.08.2018 itself, petitioner no.1 was fully aware that respondent
no.5 was already awarded the contract of assessment and collection
of taxes in respect of sign boards. Therefore, the statements made in
the petition as well as in the rejoinder by the petitioners about receipt
of knowledge of award of works on 18.04.2019 are utterly false.
Furthermore, having participated in the contract process it is difficult
to believe that petitioner no.1 did not know the outcome of the
process. Therefore, while rejecting the defence of the petitioner with
regard to the issue of delay and latches, we deprecate the conduct of
the petitioners in making false statements on oath.
22. Since we have come to the conclusion that the
petitioners do not have locus standi to file the present petition as well
as the petition being barred by principles of delay and latches, we do
not deem it necessary to go into merits of various contentions raised
in the petition. The said issues are left open.
23. The petition is, therefore, dismissed. No order as to the
costs.
24. Rule is discharged.
( SANDEEP V. MARNE, J. ) ( MANGESH S. PATIL, J. )
GGP
