Bombay High Court
Shri Tirupati Waste Management ... vs The State Of Maharashtra And ... on 11 August, 2022
Bench: Mangesh S. Patil, Sandeep V. Marne
1 wp11971.2019 judgment
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CIVIL WRIT PETITION NO. 11971 OF 2019
Shri Tirupati Waste Management,
Through its Partner,
Vasant S/o Govind Koke,
Age: 55 years, Occ : Business,
R/o : 4967, Iwale Lane,
Maliwada, Ahmednagar. ...PETITIONER
VERSUS
1. State of Maharashtra,
Through its Secretary,
Urban Development Department,
Mantralaya, Mumbai - 32.
2. Ahmednagar Municipal Corporation,
Through its Commissioner,
Ahmednagar Municipal Corporation,
Nagrdeole, Ahmednagar.
3. Medical Officer,
Ahmednagar Municipal Corporation,
Nagaredole, Ahmednagar.
4. Bioclean Systems Pvt. Ltd.,
Through its Director,
Flat No. 6, First Floor,
Building A10, Meeranagar, Lane No. 7,
Koregaon park, Pune 411001. ...RESPONDENTS
...
Advocate for Petitioner : Mr. Sushant V. Dixit.
AGP for Respondent No. 1-State : Mr. S.B. Yawalkar
Advocate for Respondent Nos. 2 Mr. Rajdnera S. Deshmukh
and 3 : (Senior Advocate) a/w Mr. Kunal
Kale, i/by Mr. Devang Deshmukh
...
::: Uploaded on - 12/08/2022 ::: Downloaded on - 13/08/2022 18:15:48 :::
2 wp11971.2019 judgment
CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
Reserved on : 03.08.2022
Pronounced on : 11.08.2022
JUDGMENT : (PER - SANDEEP V. MARNE, J)
1. Rule.
2. Rule made returnable forthwith. With the consent of the
learned advocates for the parties, heard finally at the stage of
admission.
3. The petitioner seeks to assail the alleged "extension of
work" for collection, disposal, transport and management of Bio
Medical Waste granted by the Ahmednagar Municipal Corporation, in
favour of respondent No. 4, for 5 years. The petitioner also seeks
direction to the Municipal Corporation to take decision on Tender No.
1826/2018 for the period of 15 years. The prayer Clauses (A) and (B)
are reproduced below :
"A. For a writ of certiorari, order or direction in the
nature of certiorari calling for record and
proceedings of extension of five years given in favour
of respondent No. 4 on 24.08.2018 and after
examining legality, validity and propriety thereof,
extension of five years given in favour of respondent
3 wp11971.2019 judgment
No. 4 on 24.08.2018 be quashed and set aside.
B. For a writ of Mandamus, order or direction in
the nature of mandamus directing respondents Nos.
2 and 3 to act and take decision on tender No.
1826/2018 for the period of 15 years as per
conditions of tender within period of 7 days or as
this Hon'ble Court may deem appropriate."
4. The aforestated prayers of the petitioner, as supported by
the pleadings, are based on an assumption that the respondent No.
2/ Municipal Corporation, though had invited tender for award of
work for 15 years, abandoned the same and instead issued extension
order in favour of the existing contractor (respondent No. 4) for a
period of 5 years. The petitioner has proceeded to file the present
petition by assuming that the tender process was not finalized and
that award of work in favour of respondent No. 4 was not as a result
of finalization of the tender process. Even though, the counter
affidavits filed by respondent No. 2/Municipal Corporation, as well as
by respondent No. 4, made it clear that the assumption of the
petitioner is erroneous, the counsel for the petitioner made his
submissions before us, once again presuming that the tender process
was cancelled and respondent No. 4 has been issued the extension
order. We would deal with the factual position little latter. But we
must express our anguish about the manner in which the petition is
4 wp11971.2019 judgment
structured, as well as the way the alleged grievance of the petitioner
was pressed before us, during the course of arguments.
5. Let us first examine the pleadings of the petitioner. It
claims to be a partnership firm. It contends that on 11.05.2018
respondent No. 2/Municipal Corporation invited e-tender for
collection, disposal, transport and management of Bio Medical Waste
in Ahmednagar City. It further contends that the petitioner along
with three other bidders submitted their bids. There was a specific
condition in the tender notice that there should be no outstanding
Government dues of any bidder. It is further contended that the
technical bids of all firms were rejected and that therefore, the tender
process was not proceeded further and it was decided to issue fresh
tender. The petitioner has produced a copy of the e-tender notice
dated 11.05.2018 at Exh. 'A' of the petition.
6. It is further contended by the petitioner that the General
Body of the Municipal Corporation adopted a resolution on
28.03.2018 for the issuance of fresh tender process for a period of 15
years, without giving extension to the existing entity. A copy of the
resolution dated 28.03.2018, produced by the petitioner has been
annexed at Exh.-'E' to the petition. It is further contended that in
pursuance of the said resolution, tender notice was issued bearing
5 wp11971.2019 judgment
No. 1826/2018 by respondent No. 2/Municipal Corporation on
05.07.2018, with time of 21 days for the submission of bids. The
petitioner submitted its bid in pursuance of the said re-tender
notice. It is further averred in the petition that the petitioner was
awaiting the decision of allotment of e-tender but no status was
updated on e-tender portal. The petitioner further averred that it
went on approaching the authorities of respondent Nos. 2 and 3,
about the information in respect of the e-tender but no information
was provided.
7. The petitioner thereafter avers that it made
representation dated 16.08.2018 to the Municipal Commissioner
stating that since there was no change in the e-tender conditions, the
petitioner had filed e-tender for 15 years, but it was willing to perform
the work at same date for 5 years. It is contended that petitioner
thereafter made representation dated 29.01.2019 raising grievance
about the altered tenure of contract from 15 years to 5 years. In the
representation dated 29.01.2019 the petitioner also questioned the
grant of extension of contract to respondent No. 4 for 5 years.
8. Based on the above pleadings the petitioner has
presumed that the tender was not finalized by respondent No. 2 and
an illegal execution order was granted in favour of respondent No. 4.
6 wp11971.2019 judgment
9. During the course of his submissions, Mr. Sushant Dixit,
learned Advocate for the petitioner continued with the theory of non
finalization of the tender and issuance of extension order in favour of
respondent No. 4. He invited our attention to the work order dated
29.08.2018 issued in favour of respondent No. 4 branding the same
as extension order for a period of five years. He urged before us that
the bid of the petitioner at 27% royalty per month with 1% increment
every year was higher than the bid of respondent No. 4, which was for
20% monthly royalty. He invited our attention to the screen shot of
online portal to bidders, to contend that almost all the stages were
completed but the tender was not finalized. He particularly laid
emphasis on the General Body resolution dated 28.03.2018 in which
it was resolved that the Municipal Corporation should not grant
extension to the existing contract but should invite tenders for the
award of work for 15 years. He further contends that though these
resolutions were later suspended by the State Government in exercise
of powers under Section 451 of the Maharsthra Municipal
Corporations Act, 1949, such suspension was done on 13.08.2019
after award of the work order in favour of respondent No. 4 on
24.08.2018. He therefore contends that as on the date of award of
work order dated 24.08.2018 the General Body resolution for non
grant of extension and for issuance of tender for 15 years adopted on
7 wp11971.2019 judgment
28.03.2018 was in existence.
10. Mr. R.S. Deshmukh, the learned Senior Advocate
appearing for respondent No. 2 Municipal Corporation submits that
the work order dated 29.08.2018 awarded in favour of respondent
No. 4, was as a result of finalization of tender process and that the
same is not an extension order. He has taken us through the entire
chronology of events, leading to issuance of the work order with
which we would deal it little later. He also raised an objection of
delay in filing the present petition by contending that even though the
work order was issued on 24.09.2018 the petitioner has filed the
present petition more than a year later on 24.09.2019. He further
contends that the substantial tenure of the contract is over during
the pendency of the present petition. He further contended that the
General Body resolution dated 28.03.2018 has been suspended by
the State Government vide order dated 13.08.2019, after taking into
consideration the complete factual position put up by the Municipal
Corporation. He further submits that the Municipal Corporation
ensured that respondent No. 4 cleared all the dues of the Municipal
Corporation before the award of the work. Mr. Deshmukh, learned
Senior Advocate therefore prays for dismissal of the petition.
11. Mr. Narwade, the learned Advocate appearing for
Respondent No. 4 has adopted the submissions of Mr. Deshmukh,
8 wp11971.2019 judgment
has urged before us that no case is made out by the petitioner for
interference in the entire process.
12. After hearing the Advocates appearing for the parties, we
are convinced that the petition of the petitioner is entirely
misconceived. The petition has been filed in a very casual manner
without verifying facts and by raising erroneous presumptions. We
have already considered the pleadings of the petitioner in the petition.
Now we proceed to narrate the factual position :
a) The work of collection, disposal, transport and
management of Bio Medical Waste was awarded by
respondent No. 2 Corporation in favour of respondent No. 4
for a period of 15 years vide agreement dated 17.06.2004. The
tenure of the said contract was coming to an end on
21.07.2018.
b) Initially, the Standing Committee of the Municipal
Corporation adopted a resolution for grant of extension in
favour of respondent No. 4. However, the Municipal
Commissioner disagreed with the proposal for grant of
extension and instead proposed initiatiation of tender process
for appointment of contractor. It appears that instead of
9 wp11971.2019 judgment
considering the proposal placed by the Municipal
Commisioner, the General Body considered a letter of
Municipal Councilor and adopted a resolution for
implementation of tender process for award of work for 15
years.
c) Accordingly the e-tender notice No. 1769 of 2018
was published, in which 6 bidders participated. However none
of them were found to be technically eligible and therefore, re-
tender notice No. 1824 dated 04.07.2018 was published in
which, the period for submission of bids was for 21 days. The
said period of 21 days was curtailed to 7 days as a result of
decision taken in the meeting held on 04.07.2018. Accordingly
re-tender notice No. 1821 was cancelled and a fresh e-tender
notice No. 1826, dated 05.07.2018 was published. In the said
tender notice No. 1826, the tenure of work was for 15 years.
On 06.07.2018 the then Collector/Municipal Commissioner
took a decision to reduce the tenure of contract from 15 years
to 5 years and to modify the amounts of form fees and EMD.
Accordingly a corrigendum was published on 07.07.2018.
d) In the said process of tender notice No. 1826
modified by the corrigendum dated 07.07.2018, 4 bidders
10 wp11971.2019 judgment
participated and all four were found technically eligible. Out of
the said 4 bidders, 3 bidders quoted rates for 5 years,
whereas, the petitioner quoted rates for 15 years. Since the
petitioner did not quote rates for 5 years as required under
the corrigendum, the Municipal Corporation considered
financial bids only in respect of balance three bidders.
Respondent No. 4 was found to be H-1 and it was decided to
award the contract to respondent No. 4. The then Collector -
Municipal Commissioner approved the award of contract to
respondent No. 4 subject to the condition of clearance of all
dues. Respondent No. 4 deposited cheque of Rs. 60,00,000/-
with the Municipal Corporation on 23.08.2018 towards its
past dues. Thereafter, the work order dated 24.08.2018 was
issued in favour of respondent No. 4 awarding the work for a
period of 5 years.
13. The above chronology of events indicates that the entire
theory of non finalization of tender process and issuance of extension
order in favour of respondent No. 4 is totally misconceived. The
petitioner was labouring under a complete misconception at the time
of filing of the present petition. In this regard, it is pertinent to note
that the petitioner had sufficient time to verify the facts before filing
the misconceived petition. The work order was issued on 24.08.2018
11 wp11971.2019 judgment
and the present petition is filed more than a year later, on
24.09.2019. To make things worse, petitioner did not bother to
correct its stand by amending the petition at least after gaining
knowledge of factual position through counter replies filed by
respondents. Rather, the petitioner chose to press the theory of non
finalisation of tender and grant of extension even during arguments.
14. What pains us more is that the factum of issuance of
corrigendum for reduction of tenure of contract from 15 years to 5
years, though was in the knowledge of the petitioner, has been
suppressed in the petition. The petitioner has produced letter dated
16.08.2018 at Exh.-F to the petition, in which, it has not only
referred to the corrigendum but also to the factum of reduction of
tenure of contract from 15 years to 5 years. The petitioner also
referred to the reduction of form fees of the tender effected by the
corrigendum. Thus, the corrigendum dated 07.07.2018 was noticed
by the petitioner on account of which it submitted the letter dated
16.08.2018 expressing willingness to work on the same rates for 5
years. However, despite the knowledge of the said corrigendum, the
petitioner has suppressed the same in the petition.
15. Having participated in the tender process, it is difficult to
believe that the petitioner did not get knowledge about the result of
12 wp11971.2019 judgment
the tender process. We disbelieve the stand of the petitioner that
outcome of tender process was not made known by the Municipal
Corporation. Ironically the Petitioner who feigns ignorance of outcome
of tender process, is however in possession of financial bid of
Respondent No. 4. Even though, the work order dated 24.08.2018
was issued in favour of respondent No. 4, as a result of finalization of
tender process, the petitioner has filed the present petition by
painting a picture as if the respondent Municipal Corporation did not
finalize the tender process and extended a favour to respondent No. 4
by extending the earlier contract by 5 years. This entire assumption
on the part of the petitioner has turned out to be utterly false.
16. On account of filing of such misconceived petition, we
cannot go into the question of the rates quoted by the petitioner and
respondent No. 4 and whether the respondent Municipal Corporation
was justified in not considering the financial bid of the petitioner. We
also do not wish to go into the issue of subsequent suspension of the
General Body resolution by the State Government.
17. On the basis of material placed before us, we are satisfied
that the work has been awarded by the respondent Municipal
Corporation in favour of respondent No. 4 by finalizing the tender
process. The award of such work is not an extension of the earlier
13 wp11971.2019 judgment
contract. If the petitioner was aggrieved by the rejection /non
consideration of its financial bid the petitioner ought to have setup a
timely challenge to the said action by properly structuring its
petition. The petition is based on incorrect assumptions, which was
filed more than a year after the award of contract to respondent No.
4. We, therefore, are not inclined to go into the said issue.
18. In the result, we have no hesitation in concluding that
the petition is entirely misconceived and a gross abuse of process of
law.
19. In the circumstances, the petition is dismissed with costs
of Rs. 10,000/- (Rs. Ten Thousand Only).
20. The rule is discharged.
( SANDEEP V. MARNE ) ( MANGESH S. PATIL )
JUDGE JUDGE
mahajansb/
