Bombay High Court
M/S. Terracon Ecotech Pvt. Ltd vs Tree Authority Nashik Municpal ... on 11 September, 2023
Bench: Shri Arif Doctor
2023:BHC-AS:26550-DB
15-IA.15128.2023
Jvs.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 15128 OF 2023
IN
WRIT PETITION NO. 8427 OF 2023
M/s. Terracon Ecotech Pvt. Ltd. } Applicant
In the matter between
M/s. Terracon Ecotech Pvt. Ltd. } Petitioner
versus
Tree Authority, Nashik Municipal }
Corporation & Anr. } Respondents
Mr. Chaitanya Chavan with Mr. Amey Hadwale and
Ms. Geeta Undwani for the applicant/petitioner.
Mr. Rohit Sakhadeo for the respondents.
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ.
& ARIF S. DOCTOR, J.
DATE: 11th SEPTEMBER 2023
P.C.:
1. Heard Mr. Chavan, learned counsel for the petitioner and
Mr. Sakhadeo, learned counsel representing respondents-
Nashik Municipal Corporation (hereafter referred to as "the
Corporation").
2. This writ petition was dismissed on 4th August 2023 for 2
(two) reasons, namely that (i) no one had appeared on behalf
of the petitioner; and (ii) learned counsel representing the
respondents had stated that since in this writ petition, the
prayers being sought lie in the realm of contract, the writ
petition would not be maintainable.
15-IA.15128.2023
3. Mr. Chavan, learned counsel representing the petitioner
has stated that in view of the latest pronouncement of Hon'ble
Supreme Court by a Bench of 3 (three) Hon'ble Judges in the
case of Tata Motors Limited vs. Brihan Mumbai Electric
Supply and Transport Undertaking (BEST)1, jurisdiction
of this Court under Article 226 of the Constitution of India is
not completely ousted even in the contractual/tender matters,
if the State or its instrumentalities are found not to have
acted fairly or in a non-arbitrary manner. The Hon'ble
Supreme Court in the said case of Tata Motors Ltd. (supra)
has further observed that this Court, while exercising powers
of judicial review under Article 226 of the Constitution of India
in matters relating to tender or award of contracts, has to
keep in mind that State or its instrumentalities are to act in a
complete non-arbitrary manner.
4. It has further been argued by the learned counsel for the
petitioners that after completion of the work relating to Geo-
tagging and counting of trees pursuant to the agreement
dated 10th November 2016, the petitioner was allowed to
continue the same work for the reason that in the initial
estimate, though the trees to be Geo-tagged and counted
were shown to be 25 lakhs, however, that number was based
only on an estimate and actual number of trees of the
Corporation was found to be 47 lakhs. It has also been stated
on behalf of the petitioner that the work relating to Geo-
tagging and counting of trees was undertaken by the
Corporation in deference to a direction issued by this Court
vide judgment dated 20th September 2013 passed in Public
AIR 2023 SC 2717
15-IA.15128.2023
Interest Litigation No. 93 of 2009. He has also drawn our
attention to various correspondences made by the authorities
of the Corporation, from perusal of which, prima facie, it
appears that the claim of the petitioner is admitted by the
Corporation with some exception.
5. Though the very maintainability of the writ petition has
been opposed by learned counsel representing the
Corporation by citing a judgment of the Hon'ble Supreme
Court in the case of Municipal Council Gondia vs. Divi
Works & Suppliers, HUF & Ors.2, by stating that in
commercial disputes the writ petitions under Article 226 of the
Constitution of India ought not to be entertained. However, a
plain reading of the very judgment relied upon by the
respondents-Corporation would show that in the facts of that
case, there were serious disputed questions of fact as also
absence of material on record to support the contentions of
the respondent therein. It was, thus, that the said order came
to be passed. In the facts of the present case, the record is
quite to the contrary. Thus, we find that reliance upon the said
judgment will be of no avail to the respondents-Corporation.
Additionally, having regard to the judgment in the case of
Tata Motors Ltd. (supra), which has been rendered by three
judges of the Apex Court and taking into account various
documents, specially the correspondence made by the
authorities of the Corporation with the petitioner, we have no
hesitation to hold that this writ petition would be
maintainable.
Civil Appeal No. 1538 of 2022, decided on 28th February 2022
15-IA.15128.2023
6. Accordingly, the order dated 4th August 2023 is hereby
recalled and set aside and the writ petition is restored to file.
7. The interim application is disposed of accordingly.
8. Let affidavit in reply be filed by the respondent-
Corporation to the writ petition within a period of 4 (four)
weeks after serving a copy thereof to the learned counsel for
the petitioner. 2 (two) weeks' time thereafter shall be
available to the learned counsel for the petitioner to file
rejoinder, if any.
9. List the writ petition on 30th October 2023.
JAYANT
VISHWANATH
SALUNKE
Digitally signed by
JAYANT VISHWANATH
SALUNKE
Date: 2023.09.12
10:59:25 +0530 (ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
