Kiran Chandrakant Maid vs The State Of Maharashtra And ...
2022 Latest Caselaw 8036 Bom

                                          1                 wp7369.19 Judgment.docx



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                               WRIT PETITION NO. 7369 OF 2019


         Kiran S/o Chandrakant Maid,
         Age: 50 years, Occ. : Business,
         Proprietor M/S. Pushpachandra Reti
         Contractor, Nashik
         R/o Pushpendra Niwas, Godrejwadi,                      ...PETITIONER
         Nashik Road, Nashik.


                     VERSUS

1.       The State of Maharashtra
         through the Principal Secretary,
         Revenue Department,
         Mantralaya, Mumbai-32.

2.       The Hon'ble Minister,
         Revenue Department
         Government of Maharashtra
         Mantralaya, Mumbai-32 .......(DELETED)

3.       The Collector, Jalgaon.

4.       The Tahsildar,
         Tahsil Office, Amalner,
         Tal.:Amalner, District: Jalgaon.                     ...RESPONDENTS



                         ..........................................
         Advocate for the petitioner : Mr. V.H. Dighe h/f Mr. S.S. Wagh
         AGP for the Respondent Nos. 1, 3 & 4 : Mrs.M.A. Deshpande
                           .......................................


                                     CORAM : MANGESH S. PATIL &
                                             SANDEEP V. MARNE, JJ.

                                    RESERVED DATE      : 12.08.2022
                                    PRONOUNCEMENT DATE : 19.08.2022





                                      2                   wp7369.19 Judgment.docx




JUDGMENT : [PER : SANDEEP V. MARNE, J.]


1.                Rule.

2. Rule made returnable forthwith. With consent of the learned

Advocates for the respective parties, heard finally at the state of

admission.

3. The short issue involved in the present petition is about

entitlement of proportionate refund of amount paid for the extraction of

sand if the contractor is unable to extract the permissible quantality of

sand within the stipulated period. Also involved is the issue whether

flooding of river due to release of water from reservoir can be

considered as a 'natural calamity' for the purposes of grant of such

refund.

4. The facts of the case, as captured from pleadings filed

before us, stated are as under :

Petitioner claims to be a Civil Contractor who had

participated in e-tender process initiated by respondent No.3 and was

awarded the work order dated 18.01.2014 for extraction of sand from

the bed of river Tapi at Spot Nos. 3 and 4 of Gut No. 28, village Jallod,

Taluka Amalner. By work order, the Petitioner was permitted to extract

12862 brass sand by 30.09.2014. It is the case of the petitioner that by

30.09.2014, when the tenure of the work order ended, he was able to

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extract only 4291 brass sand. The Petitioner appears to have deposited

an amount of Rs. 1,08,99,999/- for extraction of 12862 brass sand. On

account of inability to extract remaining quantity, petitioner is claiming

proportionate refund of the amount paid by him to the Government.

5. The claim for refund is premised on two reasons cited by

petitioner for his inability to extract the permissible quantity of sand.

Firstly, on account of complaints made by the villagers, the Additional

Collector, Jalgaon had passed an order dated 24.06.2014 staying the

contract of the petitioner. The stay was lifted only on 11.07.2014. The

second reason, according to the petitioner, is the flooding of river Tapi

from 22.07.2014, on account of which, he was prevented from

extraction of sand till 18.09.2014. He claims to have sent an intimation

to the Tahsildar, Ahmednagar on 18.09.2014 stating that he had

stopped extraction activities on account of damage to the suction

pumps, approach roads etc. due to floods. He seeks to blame these two

reasons/factors for his inability to extract permissible quantity of sand.

6. The petitioner claims that he made several representations,

seeking extension of the contract period or alternatively proportionate

refund of the bid amount. Thereafter an appeal came to be filed before

the Minister, Revenue Department, on 21.11.2015, praying for the

extension of contract period or for proportionate refund of the bid

amount. A reminder appeal was filed on 07.05.2016. Crying non-

decision of appeals, he filed Writ Petition No. 9145 of 2016, which was

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disposed of with a direction to decide the appeal/representation. It

appears that the petitioner was required to file Contempt Petition No.

13 of 2017 on account of non decision of the appeal/representation. He

claims that after getting a wind of filing of Contempt Petition,

Respondent No. 1 hurriedly passed order on 30.01.2017 rejecting the

appeal/representation.

7. The petitioner thereafter, once again approached this Court

by filing Writ Petition No. 2947/2017, challenging the order dated

30.01.2017 which was disposed of by order dated 01.03.2018 setting

aside the order dated 30.01.2017 and directing re-consideration of

application filed by the petitioner for refund of proportionate amount by

considering the report given by the Tahsildar, after giving hearing to

the petitioner. Respondent No. 1 thereafter passed order dated

05.12.2018 partly accepting the claim of the petitioner for refund, in

respect of the period from 24.06.2014 to 11.07.2014 when there was

stay granted to the Collector. He is held to be entitled to proportionate

refund. However, his claim for refund on account of flood in the river

has been rejected by relying upon paragraph No. 'C'-(22) of the

Government Resolution darted 12.03.2013. It is this order dated

05.12.2018, which is the subject matter of the challenge before us in

the petition.

8. Appearing for the petitioner Mr. V.H. Dighe, has assailed the

order dated 05.12.2018 primarily on the ground that even though this

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Court directed consideration of the case in the light of paragraph 'C'-

(15) of the Government Resolution dated 12.03.2013, respondent No. 1

has ignored the said Clause and has once again rejected the prayer for

refund of appropriate amount by relying on paragraph 'C'-(22) of the

said Government Resolution. He further submits that despite this Court

directing respondent No. 1 to take into consideration the report of

Tahsildar, the same has not been considered while passing the

impugned order. He further submits that Clause 'C'-(22) does not deal

with the aspect of refund but deals only with the aspect of extension of

time. According to him, the provision for refund is to be found in

paragraph 'C'-(15) of the Government Resolution dated 12.03.2013. He

further submits that deposit of water in sand spot, though may not be a

valid ground for extension of contract or for replacement of sand spot

under Clause 'C'-(22), the same has been recognized in the provision

for refund under Clause 'C'-(15). Mr. Dighe, has laid great stress on the

report of the Tahsildar, as well as a tabular chart at Exh.-'E', showing

the details of release of water in river Tapi during July-2014 to

September-2014.

9. Mr. Dighe, has placed reliance on the judgment of this Court

in Shivaji J. Chavan Vs. The State of Maharashtra and Ors. -

Writ Petition No. 12089 of 2013 decided on 09.07.2015.

10. Per-contra, Mrs. M.A.Deshpande, the learned Additional

Government Pleader appearing for the State Government defends the

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impugned order by submitting that deposit of water in the sand spot or

flooding in the river, having been specifically excluded for either grant

of extension or for refund, Petitioner cannot claim refund under that

pretext. She refers to similar provision under Clause 26 of the Work

Order. She has further submitted that the petitioner was permitted to

use as many as four suction pumps on his request by the Collector, as

a special case so as to enable him to extract sand from deposited

water. She submits that the petitioner has to blame himself for his

inability to extract the permissible quantity of sand within the

permissible period.

11. Before we advert to the merits of the rival contentions, it is

necessary to clarify that even though the Petitioner had raised

alternate demands for extension or refund in his

appeals/representations, before us only the prayer for proportionate

refund has been made.

12. Having heard the learned Counsels for the parties at length,

we find that the entire issue revolves around the interpretation of

Clauses 'C'-(15) and 'C'-(22) of the Government Resolution darted

12.03.2013. Clause 'C'-(15) provides that the contractor cannot sue the

Government if the contract is terminated or he is prevented from

extraction of sand from the permitted area. The Clause further provides

that in the event of protest from villagers, Court orders, natural

calamities, opposition from administrative machinery, if the extraction

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or transportation is affected or if possession of sand spot is not handed

over, the proportionate refund of the bid amount is permissible in

respect of period during which the contract is suspended.

13. As against this, the paragraph 'C'-(22) essentially deals

with the tenure of contract and permissibility of extension thereof. It

provides that the period of contract is maximum of one year and would

ordinarily be between 1st October to 30th September. It further provides

that irrespective of the date of tender process, the contract would

come to an end on 30 th September. It further provides that it would be

the responsibility of the successful bidder to extract sand in permissible

quantity within the tenure of the contract. The Clause further provides

that the tenure of the contract shall not be extended, nor an alternate

sand spot would be provided for the reasons of non-availability of

expected quantity of sand, non availability of roads, deposit of water in

the sand spot or for the reason of any human or natural calamity.

14. Even though, one may say that Clauses 'C'-(15) and 'C'-

(22) operate in different spheres, both essentially relate to the

eventualities of non extraction of permissible quantity of sand. Clause

'C'-(22) imposes an absolute ban on extension of tenure of contract or

allotment of alternate sand spot for any reason whatsoever. Even for

the reason of deposit of water in the sand spot. As against this, Clause

'C'-(15) permits refund if the contract is terminated on account of

occurring of eventualities stated therein. Natural calamity is one such

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eventuality.

15. The petitioner has contended that his case for refund

cannot be governed by Clause 'C'-(22) and it ought to have been

considered in accordance with the provisions of Clause 'C'-(15). It is his

case that the flooding of river is covered by the eventuality of 'natural

calamity'. The claim for refund is thus premised on the alleged natural

calamity in the form of flooding of the river.

16. Accepting the Petitioner's contention that Clause 'C'-(15)

alone would govern his case, we proceed to examine his claim as per

the provisions of Clause C(15). On strict interpretation of Clause C(15),

refund is permissible only in respect of the period during which the

contract is terminated. The eventualities for which such contract might

be terminated have been enlisted in Clause 'C'-(15), which inter alia

includes natural calamities. However termination of contract appears to

be the sine qua non for entertaining claim for refund. On slight liberal

interpretation of the Clause, 'termination' might be construed to

include even 'suspension' of contract due to eventualities named

therein. However in the instant case, Petitioner's contract was neither

terminated nor suspended on account of alleged flooding of the river.

Hence, Petitioner's claim for refund falls outside clause C(15) and for

this reason alone the claim for proportionate refund is clearly

untenable.

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17. We find that the Respondents have correctly dealt with

Petitioner's case for refund under clause C(15). His claim for

proportionate refund in respect of the period from 24.06.2014 to

11.07.2014 when his contract was suspended, has been sanctioned.

This is because during that period, his contract was suspended and the

suspension was on account of one of the permissible eventualities viz.

stay by Collector. However, since his contract was never suspended on

account of alleged flooding in the river, there is no question of granting

the claim for proportionate refund.

18. Even if Clause 'C'-(15) was to be further liberally

interpreted by not applying the test of 'termination' or 'suspension' of

contract, in our opinion the case of the petitioner would not fall within

the eventuality of 'natural calamity'. Release of water from a reservoir

is a natural phenomenon occurring every monsoon and the contractors

bidding for sand extraction from river beds are expected to factor in

this eventuality while submitting the bid. A prudent contractor would

schedule the total available period for extraction in such a way that the

eventuality of release of water from reservoir is factored in. In the

present case, the contract was awarded to the petitioner on

18.01.2014 and the which was valid upto 30.09.2014. It is impossible

to believe that he expected that extraction would be possible on every

single day during the contract period or that water would not be

released from the reservoir.

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19. In this context, the conduct of the petitioner is also

relevant. The contract was roughly for nine months. The first

eventuality of stay occurred on 24.06.2014 i.e. after a period of five

long months from the date of award of contract. The stay was vacated

within 17 days on 11.07.2014. However, the petitioner was able to

extract only 4291 brass sand till then. He was expected to have

factored in the upcoming monsoon after June for arranging his schedule

of extraction during 9 months. The conditions for extraction during first

6 months were far suitable than the last 3 months. However during this

favorable period of 6 months he appears to have extracted only 1/3 rd of

the permissible quantity. It is unbelievable that he was expecting to

extract reamaining 2/3rd quantity in unfavorable monsoon period of 3

months.

20. Even though, paragraph 'C'-(22) does not deal with

entitlement to refund, same may be of some relevance for dealing with

this aspect. There is a specific stipulation in Clause 'C'-(22) that

irrespective of the date of award of contract, the tenure of the contract

must come to an end by 30th September. Therefore, contractors were

required to take into consideration the available tenure for extraction of

the permissible quantity of sand on the basis of the date of award of

the contract. Since the petitioner knew that he was being awarded the

contract in January, 2014, he must have submitted his bid considering

the fact that he was not getting the entire year for extraction of 12862

brass of sand.

                                         11                     wp7369.19 Judgment.docx




21.            Paragraph         'C'-(22)   further   stipulates      that      it   is   the

responsibility of the contractor to extract permissible quantity of sand

within the permissible tenure. The petitioner, thus, knew that within a

period of less than nine months, he was expected to extract 12862

brass of sand and accordingly submitted his bid. Mrs. Deshpande has

submitted before us that the petitioner was permitted to use four

suction pumps for extraction of sand from the area where the water

was deposited as a special case. Despite this, he was grossly deficient

so far as quantity of extract was concerned. It therefore appears to us

that stay granted by Collector and release of water from reservoir came

as ready excuses for Petitioner to claim refund for unextracted quantity

which he was otherwise not in a position to extract. While he was found

entitled to get refund on the former pretext (as it was fitting into the

criteria of Clause C-15), the Government has rightly rejected the claim

on the latter pretext.

22. Mr. Dighe, has placed reliance on the judgment of this Court

in Shivaji Chavan (supra). However we find that the facts of that case

were entirely different. Petitioner therein was initially allotted a

particular sand spot and the allotment was cancelled by the District

Collector as there was threat of damage to a monument. Instead of

refunding the amount, he was allotted another sand spot for different

quantity of sand. Even in respect of alternate sand spot, there was

already a resolution of Gram Sabha objecting to allotment of said spot.

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It is in the light of these factual background that this Court held in

paragraph Nos.18 and 19 of the judgment as under :

"18. Thus, the scenario which emerges from the aforesaid discussion based on undisputed facts is that there was an error on the part of the Government of conducting an auction of Shevare spot No. 2, as later on, it was realized that excavation of sand at the spot will adversely affect an ancient monument. The auction of the said spot was therefore cancelled by the Collector when the petitioner had excavated quantity of only 840 brass out of the permitted quantity of 9600. Instead of refunding the amount of royalty paid by the petitioner on pro-rate basis, the Collector allotted another spot to him under order dated 11th May, 2011. In respect of the said spot allotted, the Gram Sabha had already raised an objection in January 2011 by passing a specific Resolution. As stated in the affidavit of Shri Dolas, the petitioner could excavate only 1614 brass of sand from the spot and the quantity of 7146 brass out of the permitted quantity could not be excavated. Shri Dolas has corrected the earlier statement made in the affidavit that the petitioner has excavated more than 8056 brass of land.

19. It is not even the case made out in both the affidavits or in the order dated 11 th May, 2011 that any effort was made to ascertain whether there was likelihood of resistance by the villagers as far as the spot No. 2 in village Chandaj is concerned. It is obvious that as there was no auction of the said spot allotted by the order darted 11th May, 2011, the procedure which is required to be followed under the G.R. dated 25 th October, 2010 was not followed. It is not the case of the State Government that before passing the order dated 11th May, 2011, any local inquiry was made to ascertain whether the petitioner will be able to excavate sand without any resistance. Perhaps, the allotment was made to avoid refund of the royalty amount."

Thus we find that the factual background in which the claim for

proportionate refund was granted by this Court was entirely different

than one involved in the present case. Therefore, the said decision is

clearly distinguishable.

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23. In the result, we do not find any merit in the petition and

the same is dismissed without any orders as to costs.

  ( SANDEEP V. MARNE )                     ( MANGESH S. PATIL )
       JUDGE                                    JUDGE



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