Someshswaray Infratech (India) ... vs State Of Maha., Thr. Secy. Of ...
2023 Latest Caselaw 3818 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

                            WRIT PETITION NO. 1014 OF 2023
   ( Someshswaray Infratech (India) Pvt. Ltd., Thr. The Authorised
Representative and Power of Attorney Holder, Mr. Baburao Sadashivrao
                              Deshmukh
                                 Vs.
                   The State of Maharashtra & Ors. )

Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Mr. M.V. Samarth, Senior Advocate a/b Ms. Isha Singh, Advocate for the
                                  Petitioner.
                                  Mr. N.R. Patil, A.G.P. for the Respondent Nos. 1 & 2/State.
                                  Mr. A.R. Rathi, Advocate h/f Mr. P.N. Sharma, Advocate for the
                                  Respondent No.6.




                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 18th APRIL, 2023

Heard Mr. Samarth, learned Senior counsel for the petitioner, Mr. Patil, learned AGP for the respondent Nos. 1 and 2/State and Mr. Rathi, learned counsel appearing for the respondent No.6.

2. On 13.02.2023, the following order was passed:

"1] Heard Mr. Samarth, learned senior counsel for the petitioner.

2] The petition challenges the order dated 28.4.2022 passed by the Respondent no.2, whereby the resolution dated 21.8.2019 passed by the Respondent No.6, has been set aside on the ground that

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there was a requirement to publish independent advertisement, for all the four works and since a joint tender was invited by the public notice dated 7.7.2019 and it has been considered by the Respondent no.6 in its meeting dated 21.8.2019 and the work has been granted to the Petitioner, the same was invalid on account of which though the petitioner was awarded the work and has completed almost 70% of the work, the cancellation of the resolution dated 21.8.2019 by the impugned order and directing calling a fresh tender was unjustified and unwarranted, as considering the nature of the work, for which the approval was already granted by the Director (Marketing) by his communication dated 29.5.19 (pg.19) indicated that the work of constructing a shopping complex, a Shetkari Bhawan and the safety wall was integrated with each other and therefore in fact was one single work. The impuged order in para 4 (pg.87) itself indicates that the tendering process has been duly followed, for which documents have already been placed on record (pg.92 onwards). It is therefore submitted that the interference now cannot be jeoparadise after the constructions has reached to present stage.

3] Issue notice for final disposal returnable on 27.2.2023.

                               4]           Leaned AGP            waives      for
                               Respondent Nos. 1 and 2.
                               5]               By way of an interim order,

the direction in para 3 of the operative part of the impugned order dated 28.4.2022 in so far as it directs calling a fresh tender, is hereby stayed till the returnable date."

3. Though the impugned order dated 28.04.2022 (page 91) is in favour of the petitioner, the petitioner is aggrieved by the mode in which the

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respondent No. 2 has directed the release of the bills of the petitioner upon verification of the work done by PWD.

4. Mr. Samarth, learned Senior counsel for the petitioner submits, that the challenge is restricted only to this position and nothing else. By the judgment dated 22.02.2022 in Writ Petition No. 8518/2019, this Court vide para 6 had clarified that the APMC/respondent No.6 shall process and pay the contractor (petitioner) the amount to which he is found entitled to in law, and on merit. It is contended, that thereafter two running bills in respect of the work completed by the petitioner have been submitted by the petitioner to the respondent No.6, out of which, the first running bill has been certified by the architect of the respondent No. 6, as per the statement of Mr. Rathi, learned counsel for the respondent No.6. In that view of the matter, the petitioner would clearly be entitled to the payment as certified under the first running bill. The same is therefore directed to be paid to the petitioner. Insofar as, the second running bill is concerned, as and when the same would be certified by the architect of the respondent No. 6, the same should be paid to the petitioner, as under the arrangement between the petitioner and respondent No.6 that was the mode for payment agreed between them. In that view of the matter, the Petition is disposed of in the above terms. The impugned order stands modified in the above terms. No cost.

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5. The claim for interest by the petitioner, would be permissible to be agitated in appropriate proceedings which may be instituted by the petitioner.

JUDGE SD. Bhimte