Bombay High Court
Parashar Hamal Kamgar Cooperative ... vs The State Of Maharashtra Through The ... on 29 November, 2023
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2023:BHC-AUG:24980-DB
WP 7279 23+.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7279 OF 2023
WITH
CA/8857/2023 IN WP/7279/2023
WITH
CA/11562/2023 IN WP/7279/2023
WITH
CA/11559/2023 IN WP/7279/2023
Parashar Hamal Kamgar Co-Operative
Society Limited, Paradh (Bu)
Tq. Bhokardan, District Jalna,
Through its Vice Chairman
Shri. Asharaf Khan Wahid Khan
Age 40 years, Occ. Labour work,
R/o. Sant Rohidas Raheman Ganj Jalna,
Tq. Jalna, District Jalna. ... Petitioner
VERSUS
1) The State of Maharashtra
Through the Secretary for
Food, Civil Supply and Consumer
Protection Department,
Mantralaya, Mumbai.
2) The Secretary,
Co-Operative Marketing and
Handloom Department
Maharashtra State, Mumbai.
3) The Collector, Aurangaba,
Civil Supply Department,
Collector Office, Aurangabad.
4) The District Supply Officer
Collector Office, Aurangabad
District Aurangabad. ... Respondents
...
Advocate for the Petitioner : Mr. V.D. Hon, Senior Advocate i/b Mr. A.V. Hon
Addl.G.P. for Respondent nos. 1 to 4 : Mr. S.B. Yawalkar
Advocate for Applicant in CA/8857/2023 : Mr. R.N. Dhorde, Senior
Advocate I/b Mr. R.L. Kute.
1/12
::: Uploaded on - 29/11/2023 ::: Downloaded on - 30/11/2023 09:26:53 :::
WP 7279 23+.odt
Advocate for Applicant in CA/11559/2023 : Mr. R.L. Kute
Advocate for Applicant in C.A. No. 11562/2023 : Mr. V.D. Sapkal Senior
Advocate i/b Mr. S.R. Sapkal
...
AND
WRIT PETITION NO. 9408 OF 2023
WITH
CA/12324/2023 IN WP/9408/2023
Jai Malhar Hamal & Mapadi Kamgar
Sahakari Sanstha,
Swastishri Apartment, C-Wing, Block No. 1,
Govind Nagar, Nashik Tq. & Dist. Nashik ... Petitioner.
VERSUS
1) The State of Maharashtra
Through Food Civil Supply
Consumer Protection Department,
Mantralaya, Mumbai.
2) The Collector,
Nandurbar, Tq. & Dist. Nandurbar.
3) The District Supply Officer,
Nandurbar, Tq. & Dist. Nandurbar. ... Respondents
...
Advocate for Petitioner : Mr. Swapnil Joshi i/b J.P. Legal Associates.
Addl.G.P. for Respondent nos. 1 to 3 : Mr. S.B. Yawalkar
Advocate for Applicant in CA 12324/2023 : Mr. R. L. Kute
...
AND
WRIT PETITION NO. 10906 OF 2023
Shri. Hamal Mathadi Kamgar Majoor Sahakari
Sanstha Maryadit, Shrirampur, Tq. Shrirampur,
District Ahmednagar.
Through its Chairman
Shri. Datttray Savaleram Sable,
Age 55 years, Occ. Business,
R/o. Shrirampur, Tq. Shrirampur,
Dist. Ahmednagar. ... Petitioner
VERSUS
2/12
::: Uploaded on - 29/11/2023 ::: Downloaded on - 30/11/2023 09:26:53 :::
WP 7279 23+.odt
1) The State of Maharashtra,
Through its Secretary,
Food, Civil Supply and Consumer
Protection Department,
Mantralaya Mumbai -32.
2) The Divisional Commissioner,
Nashik Division, Nashik,
Having its Office at Nashik Road,
Nashik.
3) The Collector, Ahmednagar,
District Ahmednagar.
4) The District Supply Officer
Ahmednagar, District Ahmednagar.
5) Jay Bajrang Mathadi Kamgar Majoor Sahakari
Sanstha Limited, Shrirampur,
Tq. Shrirampur, Dist. Ahmednagar,
Through its Chairman,
Shri. R.B. Waghmare,
Age 75 years, Occ. Business,
R/o. Saraswati Nagar, Ward No. 7,
Shrirampur, Tq. Shrirampur, Dist.
Ahmednagar. ... Respondents.
...
Advocate for Petitioner : Mr. Shahaji K. Shinde
Addl.G.P. for Respondent Nos. 1 to 4 : Mr. S.B. Yawalkar
Advocate for Respondent No. 5 : Mr. Mazhar A. Shaikh Jahagirdar
...
AND
WRIT PETITION NO. 3681 OF 2023
Vaijapur Hamal Kamgar Sahakari
Sanstha Vaijapur, Tq. Vaijapur,
Dist. Aurangabad, through authorized
representative
Narhari Vithal Nikam, Age 67 years,
Occ. Secretary of above society
R/o. Police Station road, Vaijapur,
Tq. Vaijapur, Dist. Aurangabad. ... Petitioner.
VERSUS
1) The State of Maharashtra,
3/12
::: Uploaded on - 29/11/2023 ::: Downloaded on - 30/11/2023 09:26:53 :::
WP 7279 23+.odt
Through Principal Secretary
Food and Civil Supply and Consumer
Protection Department,
Mantralaya, Mumbai - 32.
2) The Hon'ble Minister,
Food & Civil Supplied and Consumer
Protection Department,
Mantralaya Mumbai-32.
3) The District Collector,
Aurangabad, Tq. & Dist. Aurangabad.
4) District Supply Officer,
District Supply Office, Aurangabad.
5) Sai Malhar Hamal Mathadi Kamgar
Sahakari Sanstha Maryadit Nashik,
Through Chairman
Shashikant Kachru Raut, Age 55 years,
Occ. Service, r/o. 11, Shriganesh
Residency, Gangotri Vihar
Panchvati Nashik. ... Respondents
...
Advocate for the Petitioner : Mr. R.L. Kute
Addl. G.P. for Respondent Nos. 1 to 4 : Mr. S.B. Yawalkar
Advocate for Respondent No. 5 : Mr. Sanket S. Kulkarni.
CORAM : MANGESH S. PATIL &
NEERAJ P. DHOTE, JJ.
RESERVED ON : 08.11.2023
PRONOUNCED ON : 29.11.2023
JUDGMENT :
( PER : MANGESH S. PATIL, J.)
Since all these petitions raise a common issue, at the joint request of
the parties, these are heard simultaneously and are being disposed of by this
common judgment to avoid rigmarole.
2. Rule in all these petitions. It is made returnable forthwith. Learned
Addl. G.P. Mr. Yawalkar waives service for the respondents/State. Learned
WP 7279 23+.odt
Senior Advocate Mr. R.N. Dhorde waives service for the applicant in CA No.
8857/2023. Learend Senior Advocate Mr. S.R. Sapkal waives service for the
applicant in CA No.11562/2023 Learned advocate Mr. R.L. Kute waives
service for applicants in CA No.11559/2023 and 12324/2023. Learned
advocate Mr. Mazhar Shaikh waives service for respondent no. 5 in WP No.
10906/2023. Learned advocate Mr. Sanket Kulkarni waives service for
respondent No. 5 in WP No. 3681/2023.
3. The petitioners are the labour cooperative societies duly registered
under the Maharashtra Cooperative Societies Act, 1960 and are engaged in
loading and unloading of the goods at the Government godowns. The
petitioner from Writ Petition No. 9408/2023 is registered and engaged in
handling of goods in Nashik district. Petitioner from Writ Petition No.
10906/2023 undertakes the work in Ahmednagar district. The petitioner
from Writ Petition No. 3681/2023 undertakes the work from Aurangabad
district, whereas the petitioner from writ petition No. 7279/2023 undertakes
the work in Jalna district.
4. The petitioners are challenging the government resolution dated
06.03.2023 and particularly clause no. 2 therein, whereby, in accordance
with the government resolution dated 12.09.2014 it has been resolved that
the labour societies which are registered under the Maharashtra Mathadi,
Hamal and Other Manual Workers (Regulation of Employment and Welfare)
Act, 1969 (hereinafter 'Mathadi Act') and which have been following
necessary stipulations regarding payment to the labourers and depositing
levy with the Mathadi Board etc. and which have been following the terms
and conditions strictly and doing the work timely, can be allotted work by
granting them extension if they are ready to come with the offers at
competitive rates. However, it further stipulates that pursuant to the
circular of the Cooperative Department of 21.12.2004 the work to be
allotted/continued by a particular labour society should be restricted to the
district where it is registered.
WP 7279 23+.odt
5. At the outset it is necessary to note that the learned advocate Mr. Kute
for the petitioner in Writ Petition No. 3681/2023, on instructions, sought
leave to withdraw the writ petition. It is also necessary to note that though
the petitioner in Writ Petition No. 10906/2023 initially had not challenged
the clauses in the government resolution dated 06.03.2023 and had merely
prayed for quashing of the order passed by the respondent no. 2 therein
allotting the work in respect of 10 talukas from Ahmednagar district to the
respondent no. 5 therein, by way of amendment, even a similar challenge
was put up to the government resolution dated 06.03.2023. However,
during the course of arguments, the learned advocate Mr. Shinde for that
petitioner, on instructions, expressly stated that the petitioner was not
pressing for the pleadings and the prayer, putting up challenge to the
government resolution dated 06.03.2023 and would only pray for the
original prayers.
6. The learned Senior Advocate Mr. Hon and the learned advocates for
the petitioners would vehemently submit that such a stipulation restricting
the societies to the area of operation to a particular district is arbitrary and
discriminatory and is violative of Article 14 and also affects adversely the
fundamental right guaranteed under Article 19 (1)(g) of the Constitution of
India. He would submit that since it is a matter of tenders being floated by
the Department of Civil Supplies of the state government, imposing the
condition of area would in a way to avoid the competition, restricting the
competition to the societies from the very district, is likely to burden the
public exchequer. More the competition, lesser would be the burden. If the
petitioner societies are prevented from competing with the societies
registered in a particular district it would indirectly promote monopoly.
There is no rationale behind the object sought to be achieved and the
impugned clause being unconstitutional be struck down.
7. Mr. Hon would place reliance on the decision in the matter of Reliance
Energy Ltd. And another Vs. Maharashtra State Road Development
WP 7279 23+.odt
Corporation Ltd. And other (2007) 8 Supreme Court Cases 1. He would
submit that the government resolution under challenge is unreasonable and
avoids level playing field to all the labour cooperative societies and should
be struck down.
8. The learned Addl. G.P. Mr. Yawalkar, learned Senior Advocate Mr.
Dhorde for the intervenor in Writ Petition No. 7279/2023, learned Senior
Advocate Mr. Sapkal who has filed application for intervention in Writ
Petition No. 7279/2023, learned advocate Mr. Jahagirdar who appears for
the respondent no. 5 in Writ Petition No. 10906/2023 and Mr. Kulkarni for
respondent no. 5 in Writ Petition No. 3681/2023 would strongly oppose the
petitions. They would submit that the petitioner in Mr. Hon's matter is
blowing hot and cold. It is a clear case of approbate and reprobate. Though
it is a society registered in Jalna district and has derived the benefit of the
self-same clause while getting extension for undertaking the work and has
been allotted the work in that district, is now putting up challenge to the
same clause in respect of a similar tender process being undertaken in the
other districts. They would submit that pursuant to the same clause which
is under challenge, without resorting to any fresh tender process, it has
secured the extension and has entered into a contract by agreeing to be
abided by all the terms and conditions inter alia even laid down in the
government resolution dated 06.03.2023. They would submit that the
petitioner has been taking a convenient stand to suit his purpose and cannot
be allowed to be heard as regards the stipulation under challenge.
9. They would submit that in fact the petitioner in Writ Petition No.
7279/2023 has obtained the interim order by not disclosing the fact that
simultaneously he was also indulging in getting the extension to the contract
for Jalna district. They would submit that the petition was filed on
27.06.2023 and during pendency of the petition it entered into the contract
with the Collector, Jalna on 01.08.2023. Copy of which is produced by the
interevenor along with Civil Application No. 8857/2023. They would
WP 7279 23+.odt
therefore submit that the petitioner is guilty of changing the stands and has
resorted to concealment as well, of a material fact and no relief be granted
to him. The learned advocates would refer to the decision in the matter of
Bhaskar Laxman Jadhav and other Vs. Karmveer Kakasaheb Wagh Education
Society and others; (2013) 11 Supreme Court Cases 531.
10. The learned Addl.G.P. and the learned advocates for the intervenors
would also submit that the petitioner in Mr. Hon's matter has, again, having
participated in the tender process floated in the Aurangabad district cannot
legitimately question the stipulations in the tender conditions. Putting up a
challenge to a clause from the government resolution dated 06.03.2023
once having participated in the tender process and having failed to secure
the contract is not permissible in law. Had it secured the contract it would
not have raised any objection to the clause in question. Therefore, even for
this reason that petitioner is not entitled to put up challenge to the terms
and conditions and the clause from the government resolution in question.
11. The learned Addl.G.P. and the learned senior advocates for the
intervenors would further submit that since it is a matter of tender process,
there is inherent limitations on the powers of this Court to undertake a
judicial review. It is not a matter of discrimination. All those societies whose
area work is restricted to a particular district are entitled to participate. The
stipulation applies equally across all the districts from the State and applies
uniformly. The labour societies registered and operating in a specific district
are allowed to participate in the tender process for loading and unloading
from the government godowns which situate in that district and it is not a
matter of discrimination or unreasonable classification. The stipulation also
does not affect any fundamental right. It is a restriction which cannot be
said to be arbitrary or unreasonable.
They would cite the decisions in the matters of :
(i) Prithviraj Enterprises Vs.State of Maharashtra;
WP 7279 23+.odt
A.I.R. Online 2021 Bom 2616.
(ii) M/s. Michigan Rubber (India) Ltd. Vs. State of
Karnataka and ors; A.I.R. 2012 Supreme Court 2915.
(iii) Rai Sahib Ram Jawaya Kapur and others Vs. The
State of Punjab; A.I.R. 1955 Supreme Court 549
(iv) Balaji Goods Transport Company Vs. The State of
Maharashtra, in Writ Petition No. 1043/2014 decided on
07.01.2014.
(v) Shri. Ganesh Goods Transport Company Vs. The
State of Maharashtra and others; in Writ Petition No.
6868/2020 decided on 03.03.2021.
12. The rival submissions now fall for our consideration.
13. Since it is a matter of policy it would be apt to recapitulate the history
leading to the passing of the resolution under challenge. As can be
appreciated, the basic resolution issued by the Food and Civil Supplies
department of the State Government is dated 12.09.2014. Since it was a
matter of loading and unloading of the goods at the Government godowns
under that department, obviously, even the issue was involving the labour
cooperative societies and even the labour societies registered under the
Mathadi Act. Though the government resolution dated 12.09.2014 was
issued by the department of Food and Civil Supplies, as can be noticed from
the prephase of that resolution, even the Mathadi Board and the
representatives of the labourers were allowed to participate in the meetings
and consequently, the resolution was passed covering all the aspects
involving the labour cooperative societies and the Mathadi Board. Detail
modalities were provided for allotment of contracts for the work of loading
and unloading at the Government godowns, the manner in which the
tenders would be floated, which labour societies would be entitled to
participate, the obligations cast on them, so on and so forth. It also requires
WP 7279 23+.odt
that the societies or the contractors with whom the agreements would be
entered into shall be necessarily required to be registered as employers,
under Section 14 of the Mathadi Act. Even it contained a draft of the
agreement to be entered into.
14. Admittedly, as an exception, a decision was taken by the department
of Food and Civil Supplies as notified on 08.05.2018, wherein the other
stipulation from the government resolution dated 12.09.2014, regarding
restricting the area of operation of the society to a particular district was
relaxed for the reason that it was found that it was a drought situation and
it was needed to overcome it.
15. It is necessary to note that even before the resolution dated
06.03.2023 was issued by the Food and Civil Supplies Department, the
Department of Cooperation by its circular dated 21.12.2004, having noticed
that there were some irregularities and manipulations done at the time of
registration of labour societies, expressly notified that the labour cooperative
societies and the Hamal Kamgar Cooperative Societies fall under the same
category. It inter alia directed that the labour societies' area of operation
would be restricted to the same district where it was registered. It was also
mentioned therein that even this circular be brought to the notice of the
Food and Civil Supplies Department and the authorities working under it.
16. Conspicuously, since inception, even the department of Food and Civil
Supplies religiously followed this circular issued by the Department of
Cooperation on 21.12.2004 and finds reference in all the resolutions issued
by former department, including resolutions dated 12.09.2014 and
08.05.2018. Even there is a reference to it in the impugned resolution dated
06.03.2023. In fact, it has been expressly mentioned in the impugned clause
no. 2 stating that the work to be allotted to a labour cooperative society
would be restricted to its area of operation of a particular district, as was
notified in this very circular dated 21.12.2004.
WP 7279 23+.odt
17. It is thus quite apparent that the impugned clause has its origin in the
circular issued by the Department of Cooperation on 21.12.2004 and has
been followed for these many years without there being any objection by
any society. It has stood the test of time, albeit that alone cannot be a
ground to refute an objection on the ground of discrimination and
unreasonableness.
18. However, one cannot but emphasize the fact that as has been
mentioned herein above, the petitioner from Writ Petition No. 7279/2023
who has succeeded in obtaining a contract by resorting to the very same
clause, as can be noticed from the agreement which it has entered with the
Collector Jalna, is now putting up a challenge to the same clause when it
comes to the tender process undertaken in Aurangabad district.
Interestingly, noticing similar incompatibility in the stands being taken by
the petitioner society from Writ Petition No. 3681/2023, though it had
challenged the self-same clause no. 2 of the government resolution dated
06.03.2023, the society has filed an application for intervention in Writ
Petition No. 7279/2023 and by filing affidavit in reply expressly mentioned
that it was comfortable with the impugned clause and sought dismissal of
the Writ Petition No. 7279/2023. Faced with the situation, Mr. Kute learned
advocate for the petitioner from Writ Petition No. 3681/2023, on
instructions, sought leave to withdraw the writ petition.
19. Similar is the case with the petitioner from Writ Petition No.
10906/2023. Though it was not its initial stand, by obtaining leave to
amend the petition, even a challenge was put up to the clauses from the
government resolution dated 06.03.2023. However, as is observed herein
above, even its learned advocate, on instructions, expressly informed that
the petitioner would not be pressing for the amended portion and the
amended prayer clause, challenging the clauses from the government
resolution dated 06.03.2023. In our considered view, this very conduct of
these two petitioners simultaneously putting up a challenge to the clauses
WP 7279 23+.odt
from the government resolution dated 06.03.2023 and still seeking to derive
benefit therefrom is incompatible. Even their such a stand would suffer
from the same vice of approbation and reprobation.
20. As far as the virus of the clause is concerned, in our considered view,
by no stretch of imagination can it be said to be arbitrary or unreasonable.
It is only considering the interest of the labourer and the labour cooperative
societies and in the light of having fair distribution of work to the labourers
from different districts, the stipulation restricting only the societies
registered from a particular district, has been provided. As can be gathered
from the aforementioned facts and circumstances, we see no
unreasonableness. Even we are not ready to accept the arguments that even
this clause affects any fundamental right of the petitioner societies. The
impugned clause merely seeks to regulate the allotment of the contract.
There is no merit in the petitions.
21 The writ petitions are dismissed. All the pending applications are
disposed of.
22. Rule is discharged.
( NEERAJ P. DHOTE, J.) (MANGESH S. PATIL, J.)
23. After pronouncement of the judgment learned advocate Mr. Hon for
one of these petitioners and Mr. Joshi who also appears for petitioner in one
of these matters claim that since the interim relief has been in operation till
date the same may be continued for a while to enable the petitioners to
approach the Supreme Court.
24. The other sides strongly oppose the request.
25. Considering the view which we have taken, the request in both the
matters is rejected.
( NEERAJ P. DHOTE, J.) (MANGESH S. PATIL, J.)
mkd/-
