Bombay High Court
Ms Ambarwadikar And Company Through Its ... vs State Of Maharashtra Through Secretary ... on 5 March, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:5267-DB
wp-2465.24
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2465 OF 2024
M/s. Ambarwadikar and Company,
Through its Partner Mr. Suryakant
V. Ambarwadikar, Age-48 years, Occu:Business,
Office at: "Ambarwadikar Complex,
Surya Lawns Complex, Gut No.103,
Near Datta Mandir, Beed By-Pass Road,
Deolai, Aurangabad.
...PETITIONER
VERSUS
1) The State of Maharashtra,
Through Secretary,
Water Resources Department,
Having office at: Mantralaya,
Mumbai-400032,
2) Executive Engineer, Minor Irrigation
Division No.1, Having Offce at: Sinchan
Bhavan, Jalna Road, Aurangabad,
3) Godavari Marathwada Irrigation
Development Corporation,
Through its Executive Director,
Office at: Sinchan Bhavan, Jalna Road,
Aurangabad,
4) Executive Engineer,
Godavari Marathwada Irrigation
Development Corporation,
Office at: Sinchan Bhavan, Jalna Road,
Aurangabad,
5) Chief Engineer,
Water Resources Department,
Office at: Sinchan Bhavan, Jalna Road,
Aurangabad,
wp-2465.24
2
6) Superintendent Engineer,
Minor Irrigation Division No.1,
Office at: Sinchan Bhavan, Jalna Road,
Aurangabad,
7) Assistant Executive Engineer,
Shivna TakaliCanal Sub-Division No.2,
Office at: Sinchan Bhavan, Jalna Road,
Aurangabad,
8) Assistant Chief Engineer,
Aurangabad Irrigation Department,
Office at: Sinchan Bhavan, Jalna Road,
Aurangabad,
9) Superintendent Engineer,
Aurangabad Irrigation Division,
Office at: Sinchan Bhavan, Jalna Road,
Aurangabad.
...RESPONDENTS
...
Mr. Rameshwar F. Totala Advocate h/f. Mr. V.S. Kabra Advocate
for Petitioner.
Mr. S.K. Shirse, A.G.P. for Respondent Nos. 1 and 2.
Mr. Amit Yadkikar Advocate a/w. Mr. Akshay Kulkarni Advocate
for Respondent Nos.3 and 4.
...
CORAM: SMT. VIBHA KANKANWADI AND
S.G. CHAPALGAONKAR, JJ.
DATE : 5th MARCH, 2024
ORDER [PER SMT. VIBHA KANKANWADI, J.] :
1. The petitioner, by invoking constitutional powers under
Article 226 of the Constitution of India and taking help of Article
14 of the Constitution of India, has prayed that the records and
proceedings of E-tender notice No. 19 for year 2023-2024
wp-2465.24
(Online) and E-tender notice No. 20 for year 2023-2024 (Online)
be called for. The petitioner also prays for issuing writ to declare
those two notices as null and void.
2. Heard learned Advocate Mr. Totala holding for learned
Advocate Mr. Kabra for the petitioner, learned AGP Mr. Shirse for
respondent Nos. 1 and 2 and learned Advocate Mr. Yadkikar
along with learned Advocate Mr. Akshay Kulkarni for respondent
Nos. 3 and 4, on the first date of admission.
3. The petitioner has contended that it is a partnership firm to
whom contract of construction of earthwork lining and structure
of Canal No. 1 and distribution of Bramhagavan Lift Irrigation
Scheme Part-II, Taluka-Paithan, Distrct-Chhatrapati Sambhaji
Nagar for estimated cost of Rs. 4494.86 Lakh was allotted vide
letter dated 25th October 2010. The petitioner says that due to
illegal termination with malafide intention and for imposition of
penalty, the petitioner approached the Commercial Court by
filing Commercial Suit No. 1 of 2023 and the said Suit is still
pending. The petitioner has also prayed for interim relief. Taking
into consideration the prima facie case, the interim relief was
granted in favour of the petitioner which was continued till 8 th
February 2024. In spite of interim order, the respondents have
wp-2465.24
violated the order passed by this Court and published an
advertisement in daily newspaper Divya Marathi on 22nd
November 2023 inviting e-tender for the same work. The
petitioner had taken objection to the same and stated that such
calling of e-tender would amount to contempt of the order
passed by this Court. A notice was also served on respondent
No. 2 with a request to cancel the action. Thereafter respondent
No. 2 published one more advertisement in Daily Sakal
Newspaper on 26th November 2023 inviting e-tender for the work
which was also allotted to the petitioner. This is again in violation
of the orders passed by this Court and therefore, the contempt
petition was filed wherein notices have been issued. Commercial
Appel No. 1 of 2023 filed by the petitioner before this Court
came to be dismissed on 8 th February 2024. The petitioner
submits that from intervention application filed in his Appeal and
on inquiry, the petitioner came to know that the said on-line
tenders published, were without any sanction by the Higher
Authorities. Executive Engineer had issued letter to that effect on
2nd January 2024. After getting the knowledge about the said
illegal act, the petitioner has immediately filed an application
with the respondents with a request to cancel the e-tender
wp-2465.24
notice. When there is no response, present Writ Petition has
been filed.
4. Learned Advocate for the petitioner has taken us through
the documents including the order passed by the Commercial
Court and the orders and Judgment passed by this Court in
Commercial Appeal No. 1 of 2023 and also impugned e-tenders
published. He points out the letter dated issued by the Executive
Engineer stating that permission from the Higher Authorities
has not been taken. Therefore, learned Advocate submits that it
is necessary to stay the entire proceedings of e-tenders and the
matter deserves to be admitted.
5. Learned AGP for respondent Nos. 1 and 2 and learned
Advocate Mr. Yadkikar instructed by Advocate for respondent
Nos. 3 and 4 objects. They submit that the Commercial Suit
filed by the petitioner is pending before the concerned Court.
Though the interim relief was prayed, it was then rejected. The
petitioner preferred Commercial Appeal, which ultimately came
to be dismissed. Even the petitioner approached the Hon'ble
Supreme Court but there is no relief in favour of the petitioner.
Under the said circumstance, this is another attempt by the
wp-2465.24
petitioner to get the same relief which has been rejected by this
Court.
6. At the outset, we are taking note of the fact that the
petitioner has already approached, by way of Commercial Suit
No. 1 of 2023, before the competent Court and the said Suit is
still pending. When the interim reliefs were rejected, the
petitioner approached this Court by filing Commercial Appeal
No. 1 of 2023 and this Court dismissed the Commercial Appeal
No. 1 of 2023 on 8 th February 2024. The Hon'ble Supreme Court,
in Petition for Special Leave to Appeal (C) No. 5018 of 2024,
declined to exercise its jurisdiction under Article 136 of the
Constitution of India, by order dated 26 th February 2024. The
order of the Hon'ble Supreme Court further says that, it is
clarified that the observations in the impugned order of the High
Court shall not come in the way of the trial of the suit. Thus, the
situation stands is that it is stated that during the pendency of
the Appeal, impugned e-tenders were floated, which can still be
the subject matter before the trial Court in the Commercial Suit.
We reiterate that originally the reliefs claimed by the petitioner
were different and thereafter the Commercial Suit came to be
amended wherein compensation has been prayed. Now, even in
this Petition, the petitioner is not clarifying, as to whether the
wp-2465.24
petitioner is treating the action taken by respondent Nos. 1
and 2 for termination of contract as breach of the terms of the
contract or not. When the Suit is already pending where the
subsequent events can also be agitated, those cannot be
entertained by way of a Writ Petition. Whether the act of issuing
tenders during the pendency of the proceedings would amount
to contempt or not, is the subject matter in the Contempt
Petition and therefore, that point cannot be considered here.
7. On inquiry, learned Advocate for the petitioner makes a
statement that the petitioner has not taken part in those e-
tenders process, which are made subject matter in the Writ
Petition, now. Under the said circumstance, the petitioner cannot
have locus standi to pray for calling the records and proceedings
of those e-tenders and to declare it as null and void, by
exercising the powers of this Court under Article 226 of the
Constitution of India and therefore, the Writ Petition deserves to
be dismissed at the the threshold.
8. The Writ Petition stands dismissed, at the threshold.
[S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/MAR24
