Bombay High Court
Roadway Solutions India Infra Ltd vs Brihanmumbai Municipal Corporation on 30 January, 2024
Author: G.S. Patel
Bench: G.S. Patel
2024:BHC-OS:1672-DB 501-OSWPL-3212-2024.DOC
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 3212 OF 2024
Roadway Solutions India Infra Ltd & Anr ...Petitioners
Versus
Brihanmumbai Municipal Corporation ...Respondent
Mr Janak Dwarkadas, Senior Advocate, with Chirag Mody, Parag
Khandhar, Prachi Garg & Tapan Radkar, i/b DSK Legal, for the
Petitioner.
Mr Anil C Singh, Senior Advocate, with Rupali Adhate, i/b Sunil
Sonawane, for the Respondent-MCGM.
Mr Ankush Jagdale, Executive Engineer, (Road Department), is
present.
Mr Rohan Niparte, Executive Engineer, (Road Department), is
present.
CORAM G.S. Patel &
Kamal Khata, JJ.
Digitally
DATED: 30th January 2024
signed by
ASHWINI
ASHWINI
GAJAKOSH
PC:-
GAJAKOSH Date:
2024.01.31
12:42:45
+0530
1. Heard. This is Round Two of the Mumbai road concreting
battles. Round One ended with our order of 17th January 2024. The
Petitioner had what is described as a mega tender or a mega contract
to concrete several hundred roads in Mumbai. That Petition was
strenuously opposed inter alia on the ground that since the time of
the tender in January 2023 the Petitioner, knowing full well the
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terms of the tender and the potential difficulties, had done nothing
to progress the work. Our order of 17th January 2024 centred on one
limited aspect of the matter and that was a question of public law,
viz., the demand of the Petitioner for a hearing. Paragraphs 8, 9 and
11 of our order read as follows:
"8. The e-tender in question was of 21st November 2022
and the letter of acceptance/work order is of 18th January
2023. This tells us that everything that has happened is in a
fairly compressed time frame. The show cause notice in
question (and we are fast forwarding through the list of
dates) is of 9th October 2023. The reply to the show cause
notice is of 16th October 2023. The notice of intent to
terminate to work order is of 1st November 2023 and it is
this notice that says that the Petitioners reply to the show
cause notice is not necessary.
9. But in that reply the Petitioners had sought an
opportunity of a personal hearing and -- this is now critical
-- on 2nd November 2023, the MCGM conceded to this
request. It wrote to the Petitioners asking them to attend a
meeting in the chamber of the Chief Engineer (Roads and
Traffic) on 3rd November 2023 at 3:00 pm. The Petitioners
sought an adjournment to 8th or 9th November saying that
they were attending matters before the GST Authorities in
Vapi on the hearing date. The assertion was that the
Director of the Petitioners who was handling this contract
was already in Vapi at that time. This request was not
accepted. On 9th November 2023 came the termination
notice from the MCGM to the Petitioners terminating the
work order or the contract.
11. It is in these peculiar facts and circumstances that we
do find that the MCGM's refusal to accommodate the
Petitioners by a few days and to afford it a hearing despite
first offering it to the Petitioners (irrespective of what the
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contract may or may not expressly say) is unjustified. We
dare say that if we applied this standard to MCGM
Advocates before us, there would be a great deal of
protest."
2. It is for this reason that we required the Municipal
Commissioner to nominate an officer at a sufficiently high level to
hear the Petitioners. We reproduce paragraphs 12, 14, 15, 17 and 18.
"12. Consequently, we require the Municipal
Commissioner to nominate an officer of sufficiently high
rank to hear the Petitioners on the show cause notice, the
notice of intent to terminate and the termination notice
itself on merits. It is for the Commissioner or his nominated
officer to decide when that hearing is to take place but, in
any view of the matter, we expect it to be done before 31st
January 2024. From the Petitioners we accept an
undertaking that they will not seek an adjournment for any
reason whatsoever.
14. As to the decision itself, we make it clear that we are
not expecting, as indeed we cannot expect, a judgment
properly so called. But we note that there are many
defences taken by the Petitioners including that on certain
matters in respect of which there is an alleged default by the
Petitioners there is on the contrary compliance or
demonstrable compliance. They also may have a case that if
there is a default, the MCGM either extended time for
performance or dispensed with strict compliance with any
particular condition. The record before us indicates that the
previous decision was a simple one-line finding that the
Petitioners' response to the show cause notice was
unsatisfactory. That will not do. The show cause notice lists
individual items. The notice of termination mentions
specifics. The Petitioners replied to these individual items.
We expect at least some form of a proper decision
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displaying application of mind to the various matters in
controversy.
15. To be perfectly clear, it is not a requirement of our
order or even on law that the MCGM must find against the
Petitioners on every single item in the show cause notice. It
may well be that a single default by the Petitioners, if so
found by the officer concerned on any one issue, might well
be sufficient to justify the termination of the entire contract.
That is for the officer to decide in the first instance. We are
only highlighting this lest it be argued that unless the
MCGM finds against the Petitioners on every count in the
show cause notice it is somehow stopped from terminating
the contract. That is not the position in law.
17. The present injunction in regard to the show cause
notice, the notice of intention to terminate and the
termination notice will continue until the three are decided
by the nominated officer or 31st January 2024, whichever is
later. It goes without saying that once a date and venue is
fixed and the officer is nominated, the Petitioners
Advocates will be given 48 hours' notice.
18. At Mr Thorat's request, we clarify that our order
requiring a hearing is not based on an interpretation of the
contract at all but simply because the MCGM had itself
accepted the Petitioners' request for a hearing and had
called the Petitioners to a hearing which ultimately never
took place."
3. The Municipal Corporation of Greater Mumbai ("MCGM")
accepted this order in the sense that it did not carry it higher. That
order was not by consent of the MCGM. The Additional Municipal
Commissioner (City), Dr Ashwini Joshi, called a hearing on 23rd
January 2024. The Petitioners were given notice and there is no
complaint about insufficiency of notice.
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4. Mr Dwarkadas's submission is that although the impugned
order that followed on 25th January 2024 purports to record the
rival submissions over six or seven pages, the reasoning is entirely
perfunctory and insufficient. He says the hearing was a farce. The
Petitioners were heard not more than 30 minutes.
5. The length of the hearing is not material and indeed we might
ourselves be tempted to adopt that standard in hearings before this
Court. Mr Dwarkadas would be well advised not to tempt fate, at
least in that regard. Sufficiency of reasons is not dependent on
length.
6. Our order also said clearly that we did not expect a judgment
or, as we said in paragraph 15, that a finding should be returned on
every single item in the Show Cause Notice.
7. Mr Dwarkadas assails the reasoning in the order from pages
118 to 120. Our intention was to afford the Petitioner an opportunity
of being heard. It was most emphatically not to create another
window of opportunity to assail a resultant order after a hearing on
merits. Remedies in that regard lie elsewhere and we note that the
contract in question has in Clause 13(e) of the General Conditions of
Contract, a comprehensive arbitration provision. Mr Dwarkadas
himself accepts that there is also a contractual provision for the
appointment of an Emergency Arbitrator.
8. What is now being argued is on merits that a particular factual
aspect namely that the MCGM had on 31st October 2023 asked the
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Petitioners to carry on work, was not considered. But that is surely
an implication arising out of facts because evidence will be required
as to the circumstances in which that particular direction was issued
and, more importantly, what is it that the Petitioners did even
thereafter. Mr Dwarkadas complains that new issues were
introduced such as the matter of duct designs. He claims that the
Petitioners were taken unawares. That cannot possibly have been so
because the Petitioners were fully aware of their obligations
throughout the term of the contract until termination. Their answer
was that there were only oral discussions in regard to the demands
relating to the duct designs. An important finding at page 119 is that
the Petitioners accepted the tender being fully aware about the
conditions prevalent in Mumbai, the conditions in the tender and
therefore accepted the tender on this basis. They can hardly be
heard to say that they were taken unawares by this city or by the
tender itself. A specific finding also returned is that the Petitioners
took no efforts to comply with the tender conditions and to
complete the tasks before the monsoon. Now the Petitioners may
have many answers as to why they did not or could not but that is
surely a matter for dispute resolution following the arbitration
process. It does not lend itself to a judicial review in Article 226 of
the Constitution of India nor it can be said that the order in question
is vitiated on any of the well-settled principles that would justify the
invocation of our writ jurisdiction.
9. A study of the record to the extent necessary satisfied the
Additional Municipal Commissioner that the contractor had neither
the ability nor the interest in carrying on the works. There is a
finding that this is an essential infrastructure project for the city and
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that there are Public Interest Litigations before the First Court
regarding the poor condition of roads. That may not have a bearing
on our decision on the merits of this matter but it certainly indicates
that the MCGM and its Additional Municipal Commissioner are
fully alive to the various concerns that the MCGM must take into
account. The AMC was of the view that rather than coordinate with
the MCGM, its officers and the police, all that the contractor chose
to do was to build up a record in correspondence. The finding is
emphatic: that any further continuation would not only be against
the spirit of the contract but would be detrimental to the city and
the MCGM. There is also a finding in regard to the lack of due
diligence by the Petitioners.
10. We are not to be misunderstood as having expressed any
opinion on these findings. We are simply not satisfied that the case
of the Petitioners lends itself to judicial review or that our writ
jurisdiction can be invoked simply because the order is by the
MCGM. The Petitioners have sufficient remedies under the
contract itself. They are at liberty to pursue those.
11. Paragraph 17 of our order of 17th January 2024 said that the
present injunction would continue until the decision of 31st January
2024 whichever was later. This means that the injunction in any
case continues until tomorrow, 31st January 2024.
12. We reject Mr Dwarkadas's submission that this injunction
should be continued for a short time further to enable the Petitioner
to do something. In another manner of speaking, on a contract of
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this magnitude and that has been going on for so long, enough is
enough.
13. The Petition is rejected.
14. The Petition is to be finally numbered for statistical purposes
by Friday, 2nd February 2024.
(Kamal Khata, J) (G. S. Patel, J)
30th January 2024
