Bombay High Court
Shalimar Transport And Carting ... vs The State Of Maharashtra Through The ... on 14 August, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:17906-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7057 OF 2024
Nobel Carrying Corporation,
A Registered Partnership Firm
Through its Partner namely,
Sultan Mohiuddin Abdul Faiz,
Age 56 years, Occ. Business,
R/o. House No. 1124, National
Highway No. 9, Omerga, Tq. Omerga,
Dist. Dharashiv. ... Petitioner
VERSUS
1) The State of Maharashtra
Through the Principal Secretary,
Food, Civil Supplies and
Consumer Protection Department,
Mantralaya, Mumbai-32.
2) The Collector, Parbhani.
3) M/s. Khurana Roadlines,
Through its representative,
having its office at Jawahar
Road, Hingoli, Tq. & Dist.Hingoli. ... Respondents
...
Advocate for Petitioner : Ms. P.S. Talekar, i/b Talekar and Associates
Addl. G.P. for Respondent nos. 1 & 2 : Mr. A.R. Kale
Advocate for Respondent no. 3 : Mr. S.S. Rathi
...
WRIT PETITION NO. 7423 OF 2024
Shalimar Transport and Carting Construction
Through its Sole Proprietor,
Shaikh Hameed Shaikh Rahim,
Through General Power of Attorney,
Shaikh Junaid Shaikh Hameed,
Age 42 years, Occ. Business,
R/o. Rahemat Nagar, Parbhani. ... Petitioner
VERSUS
1) The State of Maharashtra,
1/12
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Through the Principal Secretary,
Food, Civil Supplies and
Consumer Protection Department,
Mantralaya, Mumbai-32.
2) The Collector, Parbhani.
3) M/s. Khurana Roadlines,
through its representative,
having its office at
Jawahar Road, Hingoli,
Tq. & Dist. Hingoli. ... Respondents
...
Advocate for Petitioner : Mr. N.E. Deshmukh
Addl.G.P. for Respondent nos. 1 & 2 : Mr. A.R. Kale
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 08.08.2024
PRONOUNCED ON : 14.08.2024
JUDGMENT :
(MANGESH S. PATIL,J.)
These are the writ petitions under Article 226 of the Constitution of
India, though preferred by two different petitioners, who are engaged in the
business of transportation, they are coming with identical prayers inter alia
impugning the same communication of respondent no. 1 dated 05.07.2024,
addressed to respondent no. 2-Collector Parbhani. Hence both the petitions
are heard together and are being disposed of by this common judgment and
order to avoid repetition of facts.
2. Rule in both the matters. It is made returnable forthwith.
3. The learned A.G.P. waives service for respondent nos. 1 and 2 i.e.
Principal Secretary Food, Civil Supplies and Consumer Protection
Department of the State of Maharashtra and Collector, Parbhani,
respectively. Learned advocate Mr. Rathi waives service for respondent no. 3
in Writ Petition No. 7057/2024, who is none other than the same entity that
is respondent no. 3 in Writ Petition No. 7423/2024 who is also engaged in
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the business of transportation of goods.
4. The petitioners and the respondent no. 3 are carrying on business of
transportation of goods. The petitioner in Writ Petition No. 7057/2024 was
awarded a contract for transportation of food grains and essential
commodities in Parbhani district. Its contractual period ended in the year
2021, but it was granted extensions from time to time.
5. A fresh tender was floated for the same work for the period of three
years by publishing a notice on 26.10.2021. Since the contract was being
awarded to an entity, which was already blacklisted, petitioner Nobel
Carrying Corporation preferred a writ petition and the further tender
process was stalled. The matter was transferred to the Principal Seat. The
petitioner-Nobel Carrying Corporation was again granted an extension
during the period of stay.
6. On 22.05.2024, the respondent no. 1 by a communication to
respondent no. 2-Collector informed not to grant any extension to the
petitioner -Nobel Carrying Corporation. It also directed to request the
contractor from neighbouring Hingoli district to undertake the work of
transportation.
7. Petitioner-Nobel Carrying Corporation preferred Writ Petition No.
5143/2024 challenging that communication dated 22.05.2024. By the order
dated 28.05.2024, the vacation bench directed not to take any further
decision on the basis of this communication dated 22.05.2024 and unless
the petitioner-Nobel Carrying Corporation was extended an opportunity of
being heard and directed further that it shall be allowed to continue the
work under contact.
8. Accordingly, the petitioner-Nobel Carrying Corporation approached
respondent no. 2 with a representation. He forwarded it to respondent
no. 1. In turn, respondent no. 1 directed respondent no. 2 to consider and
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decide the petitioner-Nobel Carrying Corporation's representations dated
24.05.2024 and 28.05.2024. Respondent no. 2 extended an opportunity of
being heard and submitted a detailed report on 10.06.2024 (Exh. 'O'). He
expressly and candidly informed respondent no. 1 inter alia that the
petitioner-Nobel Carrying Corporation was granted an extension since it was
already undertaking the work of transportation at a lesser rate. Awarding
contract without inviting competitive bids and without undertaking any
process was inconsistent with clause 19.4 of the government resolution
dated 15.01.2021. He also informed that considering the rate being quoted
by respondent no. 3 of Rs. 128.80 per quintal it would cause a loss to the
public exchequer of around Rs. 93 lakh per month.
9. In spite of such communication, by the impugned direction dated
05.07.2024, respondent no. 1 informed that the petitioner-Nobel Carrying
Corporation had quoted an exorbitant rate in the tender floated as per the
government resolution dated 15.01.2021. Since it was not eligible to secure
the contract, it stalled the process by filing a writ petition and under interim
order could continue to get the extensions from time to time and further
observing that till further orders or till a new contract was entered into,
which ever was earlier the Hon'ble Minister had directed Parbhani district to
be annexed to the adjoining district Hingoli for transportation and if
someone from Hingoli district was willing to undertake the work he shall be
awarded the contract for the time being. This is the communication, which
is under challenge in both these writ petitions.
10. The petitioner-Nobel Carrying Corporation additionally is seeking a
declaration that clause no. 19.2 of the government resolution dated
15.01.2021 is violative of Article 14 of the Constitution of India and in the
alternative to read it down so as to ensure that the interim arrangement is
not for an indefinite period and soliciting a mandamus directing respondent
no. 1 to initiate a fresh tender process.
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11. The petitioner-Shalimar Transport and Carting Construction from Writ
Petition No. 7423/2024 alleges that since it was also working in Hingoli
district and was willing to undertake the work even in Parbhani district, he
made a representation dated 08.07.2024 to respondent no. 2-Collector
expressly referring to clauses 17.2 and 17.3 of the government resolution
dated 20.04.2017 and clause no. 19.2 of the government resolution dated
15.01.2021 and its willingness to undertake the work, but the
representation was not considered and that the petitioner would
additionally seek a direction to the respondent no. 1 to take appropriate
decision on its representation and also sought direction to respondent no. 1
to undertake a fresh tender process.
12. The learned advocate Ms. Talekar for petitioner-Nobel Carrying
Corporation would repeat the above stand in the petition and would submit
that everything was going on smoothly till the communication dated
22.05.2024, whereby it was decided to terminate the extension granted to
the petitioner abruptly. The stand of respondent no. 1 in the impugned
communication attributing the petitioner of creating hurdle in completing
the tender process floated in the year 2021 is fallacious. The contract was
about to be awarded to an entity, who was L-1, but was already blacklisted
and was not eligible to participate, and only on this count that petition was
filed and the interim order was granted not to issue a work order.
Subsequently, on a request by respondent no. 1, the petition was transferred
to the Principal Seat and was never circulated by respondent no. 1.
Consequently, by virtue of clause 19.2 of the government resolution dated
15.01.2021, the petitioner-Nobel Carrying Corporation was granted
extension to undertake the work of transportation at the same rate, which
continued from time to time till the latest turmoil. Therefore, the petitioner
could not have been blamed for the inability of respondent no. 1 to complete
the tender process that was initiated, the tenure of which was three years.
13. Ms. Talekar would submit that by this time even that period is over,
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and as has been mentioned in the affidavit in reply filed on behalf of
respondent nos. 1 and 2, since they are ready to undertake a fresh tender
process, the petitioner would not have any objection rather is precisely what
it is praying for.
14. Ms. Talekar would further submit that in light of the supervening
events and the stand being taken by respondent nos. 1 and 2 in their
affidavit in reply, even the petitioner does not press the prayers seeking
declaration about clause no. 19.2 of the government resolution dated
15.01.2021 being violative of Article 14 of the Constitution of India.
15. Ms. Talekar would submit that respondent no.2, who is the Collector,
had given a candid opinion vide communication dated 10.06.2024 and had
objectively demonstrated as to how the arrangement of terminating the
petitioner's extension and awarding the work to respondent no. 3 would
cause a loss to the public exchequer to the tune of around Rs. 93 lakh per
month. The actions of respondent nos. 1 and 2 potentially causing such a
huge loss to the public exchequer in itself should be sufficient for this Court
to allow both the petitions and direct the respondent no. 1 to forthwith
undertake a fresh tender process. No plausible and reasonable explanation
is coming forth in the affidavit in reply filed by the respondent nos. 1 and 2
as to the estimate of loss opined by respondent no. 2-Collector and nothing
has been mentioned as to why it should be overlooked.
16. Lastly, Ms. Talekar would submit that the petitioner has been
undertaking the work of transportation at a lesser rate without there being
any dispute about its competence or performance in doing the same work
for number of years to the satisfaction of the respondent nos. 1 and 2.
There was no reason for changing the status quo albeit it was always open
for them to undertake a fresh tender process. She would, therefore, submit
that even if it would take some time to undertake the fresh tender process
and consequently petitioner-Nobel Carrying Corporation, by virtue of Clause
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no. 19.2 continues to undertake the work for some time, that would save
public money.
17. Mr. Deshmukh, learned advocate for the petitioner in Writ Petition No.
7423/2024, would adopt submissions of Ms. Talekar and would submit that
the very conduct of respondent nos. 1 and 2 in a straightaway, allowing
respondent no. 3 to undertake the work at an exorbitant rate without calling
for competitive bids, when the transporters like the petitioners are willing to
undertake the work, is clearly a highhanded and arbitrary action in view of
clauses no. 17.2 and 17.3 of the government resolution dated 20.4.2017. Its
representation has also not been considered.
18. Per contra, the learned Addl. Government Pleader, referring to the
affidavit in reply, would submit that the petitioner-Nobel Carrying
Corporation is not coming to the court with clean hands. After completion of
the contract period, under which it was working till the year 2021, it was
able to get extensions from time to time. It was mischievous in objecting to
the fresh tender process and succeeded in obtaining an interim relief,
completely stalling that process. The period for which it was undertaken
being over, the respondent no. 1 has no reservation and is rather ready to
undertake a fresh tender process. He would advert our attention to
paragraph no. 19 of the affidavit in reply in this context.
19. However, the learned Addl.G.P. would submit that it is the prerogative
of respondent no. 1 as an employer to undertake a tender process. No fault
can be found with his conduct in terminating the extension granted to the
petitioner-Nobel Carrying Corporation. However, since the petitioner-Nobel
Carrying Corporation was interested in continuing with the work it has been
able to discharge the work for number of years without there being any
formal process of law of floating of tender. He would, therefore, submit that
the powers under Article 226 of the Constitution of India shall not be
exercised in aid of such an unscrupulous litigant.
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20. The learned Addl.G.P. would advert our attention to Clause no. 19 of
the government resolution dated 15.01.2021 and Clause no. 17 of the
government resolution dated 20.04.2017 and would submit that pursuant to
such stipulation, after expiry of the earlier tender process a fresh tender
process could not be concluded and, the respondent no. 3 being a
transporter from neighbouring Hingoli District and was willing to undertake
the work, as a stop-gap arrangement the work was directed to be awarded
to it. No mala fides are being attributed to respondent no. 1 in either of
these petitions.
21. The learned advocate Mr. Rathi for respondent no. 3 would adopt the
arguments of the learned Addl.G.P. and would add that respondent no. 3,
being a contractor from adjoining Hingoli district was offered the work and
since it was ready, the impugned communication directs respondent no. 2-
Collector to get the work done from respondent no. 3. The work at which he
has been allowed to work is at the same rate as is prevalent in Hingoli
district. There is no merit in both these petitions.
22. We have considered the rival submissions and perused the papers.
23. As can be gathered, there is not much of a dispute about the facts.
Therefore, one need not repeat those. Admittedly, the tenure of the
contract, which was awarded for a period of three years to the petitioner-
Nobel Carrying Corporation had ended in the year 2021 and since thereafter
it was allowed to continue the work. Obviously, till a fresh tender process
was undertaken since it was a matter of transportation of essential supplies
within the district, the work could not have been stopped and the petitioner-
Nobel Carrying Corporation was granted extension. Though a fresh tender
was attempted to be undertaken, the petitioner by filing a writ petition had
obtained stay.
24. True it is that the petitioner Nobel Carrying Corporation was unable to
secure the contract under the fresh tender process and, may be under the
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pretext of challenging the tender process whereby the contract was to be
allotted to an entity, it was doing so merely on the ground that, that entity
was already blacklisted and still was to get the contract. One cannot find
fault with the petitioner-Nobel Carrying Corporation for taking advantage of
the situation. It could use the circumstance to his advantage and succeeded
in stalling the process. However, the stand of respondent nos. 1 and 2 and
the submission of the learned Addl.G.P. attributing petitioner Nobel Carrying
Corporation as mischievous, to our mind, is rather harsh. If respondent nos.
1 and 2 were unable to undertake the tender process with precaution and
had allowed a blacklisted entity to participate, may be on the basis of the
petitioner's allegations they could have undertaken a fresh scrutiny or could
have circulated the matter for an early decision, more so when at their
request it was transferred to the Principal Seat. Consequently, it was not the
petitioner Nobel Carrying Corporation, who alone was responsible, but even
respondent no. 1 was responsible for not getting the writ petition decided
earlier or to get the interim relief vacated. It would not, therefore, lie in the
mouth of respondent no. 1 to attribute petitioner-Nobel Carrying
Corporation for the mess.
25. Be that as it may, there cannot be a dispute about the fact that the
petitioner- Nobel Carrying Corporation is ingenuously and circuitously
seeking to get an extension till the time a fresh tender process is
undertaken. As it is, the earlier tender process, which could not be
completed, was to be for a period of three years, and by the passage of time,
even its tenure by now would be getting over. In such peculiar state of
affairs, in our considered view, when respondent no. 1 has expressly stated
in the affidavit in reply its intention to undertake a fresh tender process, we
find no hesitation in issuing such a direction, albeit the L-1 bidder from the
tender process, which could not be taken to the end, is not before us, more
so when even he does not seem to have taken any step for either getting the
stay vacated or to get the writ petition which was transferred to the
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Principal Seat decided.
26. Incidentally, the affidavit in reply filed by respondent nos. 1 and 2
does not seek to explain away the candid report of respondent no. 2-
Collector dated 10.06.2024. He had precisely pointed out as to how
awarding contract at a higher rate, may be by way of a stop gap
arrangement, would drain the public exchequer by around Rs. 93 lakh per
month. Even clause no. 19.2 in the government resolution dated
15.01.2021 being relied upon by the respondents requires such stop gap
arrangement to be undertaken from the transporter of the adjoining district.
However, only if it was willing to work at the rate at which the goods were
being transported in the district for which this arrangement is being made.
27. Learned advocate Mr. Rathi for respondent no. 3 would submit that
the rate contemplated in this clause is the rate at which the contractor in the
adjoining district has been undertaking the work and not at the rate of the
district for which the work is to be performed. To our mind, this is
complete misreading of the clause, which is in Marathi. We have no manner
in doubt that this exercise to be undertaken in case of emergency or urgency
contemplated in clause no. 19 of the government resolution dated
15.01.2021 expressly permits the work of transportation in a particular
district to be allotted to the contractor of a neighbouring district if he is
willing to work at the rate where the work is to be performed, and not at
the rate at which he is undertaking the work in the neighbouring district.
This was what the Collector has informed vide his communication dated
10.06.2024 and that is why it was being pointed out that such a stop gap
arrangement would cost the public exchequer dearly. In spite of this, the
decision was taken to award the contract for the time being to respondent
no. 3 at the rate of Rs. 128.80 per quintal when the petitioner Nobel
Carrying Corporation has been doing it at quite a lesser rate.
28. The learned A.G.P. could not give any satisfactory reply to our query
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as to why under Clause 19.2 a contractor from adjoining Hingoli district
alone was preferred, when Parbhani district has its boundaries even with
few other districts like Beed, Nanded and Jalna. We are merely pointing out
this circumstance to demonstrate that though there is enabling provision
under clause 17.2 of the government resolution dated 20.04.2021 or clause
19.2 of government resolution dated 15.01.2021 for making a stop gap
arrangement by awarding a contract for the time being to the contractors
from the adjoining district, it was imperative, even if the respondent no. 1
was not intending to continue with the petitioner-Nobel Carrying
Corporation for whatever reason, to have taken some process by offering the
work to the contractors from the neighbouring district, expressly calling
upon their willingness to work at the rate at which the petitioner-Nobel
Carrying Corporation was doing it in Parbhani district. The affidavit in reply
is conspicuously silent and does not demonstrate as to how respondent no. 3
was shortlisted and picked up for awarding the contract, as mentioned
herein above, at a rate more than the rate on which petitioner-Nobel
Carrying Corporation has been doing the work. This circumstance is also
demonstrative of the arbitrariness in taking the decision to allow the work to
be undertaken by respondent no. 3.
29. The impugned communication expressly refers to such directions
being given on the instructions of the Hon'ble Minister. This is where the cat
seems to have come out of the bag. Not only in the impugned
communication but even in the affidavit in reply respondent nos. 1 and 2
have expressly stated that the impugned decision has been prompted by the
directions of the Hon'ble Minister. We are indicating this to demonstrate that
the decision under challenge is tainted with arbitrariness and has been taken
under the influence of a minister.
30. In these circumstances, we have no hesitation in quashing and setting
aside the impugned communication and directing respondent no. 1 to
undertake a fresh tender process.
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31. However, considering the unprecedented situation and as it is a
matter of supply of essential commodities within the district, which work
cannot be stopped it would be appropriate that the respondent no. 2 is
directed to explore immediately from the petitioner-Nobel Carrying
Corporation and also the contractors of the districts adjoining Parbhani their
willingness to undertake the work as a stop gap arrangement, till the new
tender process is taken to the logical end and to award the work to such of
the willing contractor who is ready to undertake the work at the lowest rate.
He shall call for such proposals in a sealed cover and need not resort to any
detail process.
32. Both the writ petitions are allowed. The impugned communication
dated 05.07.2024 is quashed and set aside. Respondent no. 1 shall
immediately undertake a fresh tender process and conclude it as
expeditiously as possible.
33. As a stop gap arrangement, respondent no. 1 shall call for the
willingness of the contractors who are already engaged in the districts
adjoining Parbhani district, their willingness to undertake the work for the
time being and the rate at which they are ready to work and award such
work to it. The petitioner-Nobel Carrying Corporation may also submit its
offer to respondent no. 2 and even its offer shall be considered.
34. Rule is made absolute in above terms.
( SHAILESH P. BRAHME, J.) (MANGESH S. PATIL, J.)
mkd/-
