Bombay High Court
Pramod Premchand Oswal vs The Pune Municipal Corporation ... on 22 September, 2022
Bench: Madhav J. Jamdar
908-PIL-109-2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO. 109 OF 2022
Pramod Premchand Oswal } Petitioner
Versus
The Pune Municipal Corporation }
& Ors. } Respondents
Mr. Anil V. Anturkar, Senior Advocate a/w
Mr. Ajinkya M. Udane for petitioner.
Mr.Abhijit P. Kulkarni a/w Mr. Aditya S.
Mahadik for respondent nos.1 to 4/PMC.
Mr. Sanjay S. Mehta a/w Mr. Anand Melwani
a/w Mr. Aman Rite for respondent nos.11,
15 & 18.
Mr. Mohan N. Devkule for respondent no.19.
CORAM: DIPANKAR DATTA, CJ. &
MADHAV J. JAMDAR, J.
DATE : SEPTEMBER 22, 2022
P.C.:
1. Relief claimed by instituting this PIL petition is for
quashing a tender notice invited by the Pune Municipal
Corporation (hereafter "PMC", for short) for the purpose of
outsourcing labour for cleaning/sweeping of roads as well as
contracts, if any, awarded in pursuance of such tender.
2. The petitioner is a corporator of the PMC. Presently,
however, the Municipal Commissioner is the Administrator
of PMC since the term of the General Body of PMC has
expired. According to the petitioner, while issuing the
impugned tender notice, Government Resolution (hereafter
908-PIL-109-2022
"GR", for short) dated 26th November 2018 in respect of
'performance guarantee' has been thrown to the winds.
Instead of insisting for a performance guarantee (10% of
the bid) after the stage of identification of the L-1 bidder
has been reached, the PMC has been insisting for such
performance guarantee to be submitted even at the time of
submission of the bids in respect of all but one of the areas
covered by the impugned tender notice. In respect of the
said area, however, the bidders have been called upon to
submit performance guarantee in terms of the GR dated
26th November 2018.
3. The pleaded case also reveals that in respect of a
particular area, a bid has been received from a bidder, who
has fabricated documents to suit its interests. Despite such
fabrication, the said bidder was not disqualified and allowed
to participate in the tender. If such bidder had been
disqualified, there would have been one qualified bidder and
having regard to GR dated 1st December 2016, the PMC
would have been under an obligation to proceed for a re-
tender which, obviously, has not been taken recourse to, to
serve the vested interest of the officers of the PMC and the
said bidder.
4. By an order dated 19th September 2022, we had called
upon the PMC to file a reply affidavit by yesterday. Such
affidavit has been filed.
5. At the outset, Mr. Kulkarni, learned advocate for the
PMC has objected to the maintainability of the PIL petition.
The objections are three-fold. First, he contends that
908-PIL-109-2022
though the impugned tender notice was issued in May,
2022, the petitioner has invoked the PIL jurisdiction of this
Court on 11th September 2022 without there being any
reasonable explanation for the delay. Secondly, according to
Mr. Kulkarni, the trigger for this PIL is the refusal of
injunction by the Civil Courts (trial court and appellate
court) as claimed by the plaintiffs/appellants, who as
unsuccessful bidders had challenged the terms and
conditions of the tender notice before such Courts. The
suggestion of Mr. Kulkarni is that after the unsuccessful
bidders failed in their pursuit of stalling the process of
tender, the petitioner, whose other identity is that of a
contractor, has approached this Court with motive, which
can hardly be seen as bona fide. Thirdly and finally, Mr.
Kulkarni contends that despite being aware of the terms of
the impugned tender notice, which was issued in May, 2022,
the petitioner did not choose to lodge any objection with the
Administrator of the PMC pointing out any illegality in the
tender notice/process as well as seeking corrective action in
terms of the extant GRs.
6. Mr. Kulkarni's contention is that the PIL ought not to
be entertained in view of the aforesaid conduct of the
petitioner.
7. Mr. Anturkar, learned senior advocate for the petitioner
had, on the earlier occasion, contended that the PMC in
proceeding with the tender process had not followed the GR
dated 26th November 2018. This, according to him,
amounted to a patent illegality in the process. In course of
hearing today, Mr. Anturkar reiterated the aforesaid
908-PIL-109-2022
contention. As has been noticed above, an allegation has
been raised in the PIL petition with regard to fabrication of
documents by one of the bidders. Mr. Anturkar also sought
to impress upon us that in view of the admission of the
concerned bidder, as appears from one of the documents
annexed to the reply affidavit of the PMC, we ought to
interfere and grant relief as claimed by the petitioner.
8. However, having regard to the objection raised by Mr.
Kulkarni that the petitioner had not lodged any objection
with the Administrator of the PMC prior to invoking the writ
jurisdiction of this Court, Mr. Anturkar sought for leave of
the Court to approach the Administrator with a suitable
representation/objection and also prayed for an order that
till a week after the Administrator communicates its decision
on such representation/objection to the petitioner, the
tender process may not be carried further.
9. Such a stance was taken by Mr. Anturkar upon perusal
of the judgment of a coordinate Bench of this Court in
Public Interest Litigation (L) No. 1553 of 2022 (Vijendra
Kumar Rai vs. State of Maharashtra and Ors.), decided
on 21st February 2022. It has been held in such decision as
follows: -
4. The prayer in this PIL petition is for a Writ of
Mandamus directing the respondents 2 to 6 to
conduct an inquiry. Law is well-settled that in case of
an alleged breach of a mandatory duty, the salutary
general rule, which is subject to certain exceptions, is
that when a writ of Mandamus is asked for, the order
will not be granted unless the party complained of
has known what it was he was required to do, so that
he had the means of considering whether or not he
908-PIL-109-2022
should comply, and it must be shown by evidence
that there was a distinct demand of that which the
party seeking the Mandamus desires to enforce and
that, that demand was met by a refusal. We may
refer to the decisions of the Supreme Court reported
in AIR 1975 SC 460 [Saraswati Industrial
Syndicate vs. Union of India], AIR 1976 SC 1654
[State of Haryana vs. Chanan Mal], (2013) 5 SCC
427 [Rajasthan State Industrial Development &
Investment Corporation vs. Subhash Sindhi
Cooperative Sindhi Cooperative Society] and
(2013) 5 SCC 470 [Rajasthan State Industrial
Development & Investment Corporation vs.
Diamond & Gem Development Corporation
Limited], which lay down the law in this regard.
Perusal of the aforesaid decisions would also reveal
that a demand for enforcement of a duty could be
refused either by words or conduct, and it is not
necessary that only when refusal is by words that a
writ petition for a Mandamus could lie. If it is evinced
from the conduct of the authority that the demand
would not be considered, the party aggrieved need
not indefinitely wait for an express refusal. It would
be sufficient for him to show that a valid demand has
been made which is met with an implied refusal.
However, there are exceptions to the general rule on
the existence whereof a writ petition can be instituted
without there being a formal demand for justice. If
making of a demand would be an idle formality or if
irretrievable damage will ensue if the party aggrieved
were driven to demand justice first and wait for a
response, the writ court in the judicious exercise of
its discretion may not insist on the party approaching
it to do so.
5. There is no legitimate reason as to why this
salutary rule may not apply even in case of a Public
Interest Litigation, where a Writ of Mandamus is
claimed. After all, one of the objects of a Public
Interest Litigation invoking the writ jurisdiction is to
enforce public duties of the Government/authorities.
The petitioner, in the present case, ought to have
brought to the notice of the concerned authorities the
alleged violation of the prohibitory order and
908-PIL-109-2022
demanded action against the alleged offenders as per
law. There being no demand, question of a refusal
either by words or conduct does not arise. On facts,
we hold that it is not a case where any of the
exceptions noticed above would also apply. We are,
therefore, loath to exercise our jurisdiction under
Article 226 of the Constitution.
10. While agreeing with the said judgment and in view of
Mr. Anturkar's prayer, we see no reason to examine the rival
contentions on merits. The PIL petition stands disposed of
by granting liberty to the petitioner to approach the
Administrator with a suitable representation/objection. If
such representation/objection is received by the
Administrator, he shall proceed to decide the same in
accordance with law, as early as possible. The resultant
decision shall be communicated to the petitioner
immediately after disposal of his representation/objection.
11. So far as the prayer of Mr. Anturkar that the tender
process may not be carried forward till one week of
communication of the Administrator's decision on the
representation/objection to the petitioner is concerned, we
see no reason to grant such prayer in view of the decision
of the Supreme Court in State of Orissa vs. Madan Gopal
Rungta, reported in AIR 1952 SC 12. The prayer is, thus,
refused.
12. All contentions on merits are kept open.
13. No costs.
SALUNKE
JV
Digitally signed
by SALUNKE J V
Date: 2022.09.23
19:18:07 +0530
(MADHAV J. JAMDAR, J.) (CHIEF JUSTICE)
