Gujarat High Court
Hitesh Kantilal Kotak Karta Of ... vs District Election Officer And ... on 20 February, 2021
Bench: R.M.Chhaya, R.P.Dholaria
C/SCA/3136/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3136 of 2021
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HITESH KANTILAL KOTAK KARTA OF HITESH KANTILAL KOTAK
(HUF), PROPRIETOR OF 3RD EYE SOLUTIONS
Versus
DISTRICT ELECTION OFFICER AND COLLECTOR, AHMEDABAD
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Appearance:
MR YH MOTIRAMANI(3720) for the Petitioner(s) No. 1
MR.DIVYESH G NIMAVAT(3757) for the Petitioner(s) No. 1
Mr. Mitul Shelat with MS DISHA N NANAVATY(2957) for the
Respondent(s) No. 3
Mr. Manisha Lavkumar, Government Pleader with Ms. Aishvarya Gupta
with Mr. Tirthraj Pandya AGP NOTICE SERVED BY DS(5) for the
Respondent(s) No. 1,2
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CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE R.P.DHOLARIA
Date : 20/02/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1.0. By way of this petition under Article 226 of the Constitution
of India, the petitioner has prayed for following main prayers:
"A. That the Honourable Court be pleased to issue a writ of
mandamus and / or a writ in the nature of mandamus and
/ or appropriate writ, order or direction to quash and set
aside and / or cancel the allotment order dated 30.01.2021
issued by the respondent no.1 - District Election Officer &
Collector, Ahmedabad in favour of respondent no.3;
B. That the Honourable Court be pleased to issue a writ of
mandamus and / or a writ in the nature of mandamus and
/ or appropriate writ, order or direction to the respondent
nos. 1 and 2 to allot the work of undertaking photography
and videography during forthcoming Panchayat Elections
to be held in February 2021 in favour of the petitioner:"
2.0. The following facts emerge from the record of the petition.
C/SCA/3136/2021 ORDER
2.1. It is the case of the petitioner that the petitioner is
engaged in the business of videography and photography since
2009 and has successfully carried out videography work of General
Assembly / Lokhsabha Elections held in the year 2012 and 2019 for
the Districts of Botad, Gandhinagar, Mehsana and Surat. It is also
the case of the petitioner that petitioner has experience of
photography and videography of Taluka Panchayat, District
Panchayat, Nagarpalika and Maha Nagarpalika Elections and it is
the case of the petitioner that the petitioner possesses the sufficient
experience and is capable of performing the work of photography
and videography during the elections.
2.2. It is the case of the petitioner that usually the allotment of
work of photography and videography during the election is done
through tender process, however recently the elections have been
announced for District Panchayat and Taluka Panchayat in the
State of Gujarat, which is scheduled to be held in the month of
February 2021 and counting is on 3.3.2021. It is the case of the
petitioner that during the election photography and videography is
required to be done throughout the election process at each and
every polling booth during the election , movements of ballots
during the election and even while counting the ballots. It is the
case of the petitioner that on modalities of election being issued by
the State Election Commission, tenders were floated for
photography and videography for the District of Amreli, Bharuch,
Bhavnagar, Narmada, Navsari, Patan, Porbandar, Tapi, Vyara and
Vadodara, However, the respondent no.1 - District Election Officer
C/SCA/3136/2021 ORDER
did not float any tender and chose to allot the work on the basis of
rates quoted for photography and videography during Loksabha
Election, 2019. It the case of the petitioner that petitioner also
addressed a letter dated 25.1.2021 and gave an offer to do the
work of photography and videography for the forthcoming
Corporation and Panchayat elections scheduled to be conducted in
this month. It is further the case of the petitioner that the petitioner
quoted 25% less than last awarded work order during the Loksabha
Election 2019 and similarly two more parties viz. M/s. Royal
Infotech and M/s. Harsadh Studio (respondent no.3) offered to do
the work at 20% and 15% respectively less than the last awarded
work order of Loksabha Elections, 2019. It is the case of the
petitioner that the respondent no.3 herein quoted highest rates
amongst the three offerers. It is further the case of the petitioner
that however by the impugned order dated 30.01.2021, despite the
fact that respondent no.3 had quoted highest rate, has been allotted
work by the respondent authority. The record indicates that the
again by communication dated 30.01.2021 the petitioner
approached the respondent no.1 to reconsider the decision of
allotting the work order in favour of the respondent no.3 as the
petitioner quoted lower rates in comparison to respondent no.3. It
is also stated by the petitioner that petitioner has sufficient work
experience to undertake such work. The record further indicates
that notice was also issued on 4.2.2021 to reconsider the impugned
decision dated 30.01.2021, however as no response was received,
the present petition is filed on the ground which are enumerated in
the petition.
C/SCA/3136/2021 ORDER
3.0. Heard Mr. Y H Motiramani, learned advocate for the
petitioner, Mr. Tirthraj Pandya, learned AGP for the respondent
Nos. 1 and 2 and Mr. Mitul Shelat, learned advocate for the
respondent no.3..
4.0. In response to the notice issued by this Court vide order
dated 15.2.2021, Mr. Tirthraj Pandya, learned Assistant
Government Pleader has appeared on behalf of the respondent nos.
1 and 2 and Mr. Mitul Shelat, learned advocate has appeared on
behalf of the respondent no.3. Both the respondent have filed their
affidavit in replies, which are taken on record .
5.0. Mr. Motiramani, learned advocate for the petitioner has
stated before this Court that petitioner does not intend to file any
affidavit in rejoinder to the affidavit in reply filed by both the
respondents.
5.1. Mr. Motiramani, learned advocate for the petitioner
contended that petitioner has quoted lower rates. Reiterating that
the rates quoted by the petitioner is 10% less than the respondent
no.3, it was contended by Mr. Motiramani that expenses of election
are to be borne by the respondent authorities and by giving work
order to respondent no.3 on higher rate, the same shall be burden
on public exchequer. It was further contended that the other
District Panchayats have floated the tender, however with a mala
fide intention to allot work only to respondent no.3, no tender has
been floated by the respondent nos. 1 and 2 for the District of
Ahmedabad and Ahmedabad Municipal Corporation and that such
action on the part of the respondent authorities is unfair and
C/SCA/3136/2021 ORDER
unreasonable. Mr. Motiramani further contended that only because
respondent authorities wanted to favour respondent no.3,
experience is given a go bye. Mr. Motiramani has further contended
that respondent no.3 has no experience of Photography and
Videography of election process and therefore, it was contended by
Mr. Motiramani that on all the counts respondent no.3 being
lowest in experience, the work order should have been allotted to
the petitioner. It was further contended that action of the
respondent authorities in granting work order in favour of
respondent no.3 is unfair and same has been undertaken without
verifying the facts of respondent no.3. According to Mr.
Motiramani, learned advocate for the petitioner if the tender would
have been floated, the same would have been with certain
conditions and respondent no.3 would have been disqualified on
the ground of having no experience of Photography and
Videography for election. On the aforesaid contentions, it was
contended by Mr. Motiramani that the matter requires
consideration and the work order given in favour of respondent
no.3 deserves to be quashed and set aside and same should be
allotted in favour of the petitioner.
6.0. Mr. Tirthraj Pandya, learned Assistant Government
Pleader for the respondent authorities has relied upon the affidavit
in reply filed by the respondent no.1. Mr. Pandya, learned AGP
contended that petitioner has no locus standi to file present
petition. Mr. Pandya, learned AGP contended that the averments
and contentions raised in the petition are self contradictory
inasmuch as that the petitioner himself had sent an offer letter
C/SCA/3136/2021 ORDER
dated 25.1.2021 and had offered to undertake work of
Videography and Photography at 25% lower than the rates
approved for the general election of Loksabha held in the year
2019. It was contended by Mr. Pandya, learned AGP that on one
hand the petitioner agitates that the allotment order dated
30.01.2021 issued by respondent no.1authority in favour of
respondent no. 3 is without following tender procedure and at the
same time, the petitioner has consciously submitted its offer to
undertake the work of videography/photography. Mr. Pandya,
learned AGP contended that though the petitioner has raised
contention with respect to allotment of work in favour of
respondent no.3 without following any procedure of competitive
bidding, the petitioner has chosen not to incorporate any prayer
with respect to issuing any direction upon respondent authority to
allot the work of videography/photography only by inviting
competitive bids through tender. On the contrary, the petitioner
has prayed to issue direction upon respondent nos. 1 and 2
authorities to allot the work of videography/photography during
the forthcoming of election of local body in favour of the petitioner
instead of respondent no.3. Referring to the clause 2.3 (2) of
Chapter2 of the Hand Book2019 of Returning Officer issued by
State Election Commission, it was contended that all the expenses
for the elections of the Municipal Corporation is to be borne by the
respective Municipal Corporations from its own funds. Mr. Pandya,
learned AGP further contended that Ahmedabad Municipal
Corporation supplied a copy of letter of acceptance dated
20.02.2020 issued in favour of respondent no.3 to undertake work
of Photography, Videography, Live Projection, Live Telecast etc. at
C/SCA/3136/2021 ORDER
various Events Organized by Ahmedabad Municipal Corporation for
a period of one year which is extendable for another period of one
year if found suitable. Mr. Pandya,, learned AGP contended that
such work order has been allotted by Ahmedabad Municipal
Corporation in favour of respondent no.3 after floating tender,
wherein petitioner did not participate in the said tender process.
Mr. Pandya contended that the facts therefore show that the
respondent no.3 has already an ongoing contract with Ahmedabad
Municipal Corporation for the purpose of Photography,
Videography, Live Projection, Live Telecast etc. and therefore,
respondent no. 2 thought it fit and appropriate to assign the work
of photography/videography for the upcoming election of
Ahmedabad Municipal Corporation in favour of respondent no. 3.
6.1. Mr. Pandya, learned AGP asserted that respondent no.2
had received three offers letters, one from Royal Infotech, second
from the petitioner) and the respondent no.3 to undertake the
work of videography/photography. Mr. Pandya further contended
that with an endeavor to avoid additional expense of undertaking
fresh tender procedure, the respondent no. 2 vide impugned
allotment order dated 30.01.2021, decided to assign the work of
videography/photography in favour of respondent no. 3 since, the
expense for such work of videography/photography during the
upcoming election of Municipal Corporation is to be borne by the
corporation itself and therefore, it was thought it fit to take such
services from respondent no. 3 with whom the corporation has an
ongoing contract. Mr. Pandya contended that respondent no. 3 has
far better credentials and experience for carrying out one of the
C/SCA/3136/2021 ORDER
most prominent task of the election process which would ensure
fair and independent election process. Mr. Pandya contended that
almost 50% of the work is over and in case if any discrepancy in the
service of the respondent no.3 is found,, the Corporation will be in
a position to take appropriate steps against the respondent no.3 as
Corporation had already ongoing contract with the respondent
no.3. Mr. Pandya, learned AGP contended that negotiations were
held with the respondent no.3, whereby, vide letter dated
27.01.2021, respondent no. 3 agreed to undertake the work of
videography/photography for the upcoming election of Ahmedabad
Municipal Corporation for the year 2021 at 15% below the rates on
which respondent no. 3 had carried out the same work during the
general election of Loksabha in the year 2019. Mr. Pandya, learned
AGP contended that work of Photography and Videography during
the election is one of the significant tasks to accomplish which
renders a great help to the Election Commission for ensuring fair,
transparent and independent election and for such specialized work
, price cannot be the sole criteria for allotment of such critical and
sensitive task which requires thorough precision and experience to
achieve the desired result. Mr. Pandya, learned AGP contended that
respondent no.2 as an authority has evaluated the experience of all
the offerer and has found respondent no.3 to be more suitable and
entitled amongst other two agencies including the petitioner. Mr.
Pandya, therefore, contended that all contentions raised by the
petitioner deserves to be negatived and petition is misconceived
and same deserves to be dismissed.
7.0. Mr. Mitul Shelat, learned advocate for the respondent no.3
C/SCA/3136/2021 ORDER
has raised the preliminary objection as regards as maintainability of
the petition and has invited the attention of this Court to para 4 of
the affidavit in reply filed by the respondent no.3. Mr. Shelat
contended that decision to award contract in favour of the
respondent no.3 is reasonable and does not warrant exercise of
discretionary jurisdiction under Article 226 of the Constitution of
India. Mr. Shelat contended that respondent nos. 3 is the
photographer and videographer to the Hon'ble Governor of Gujarat
since 1990 and has taken this Court to the documents which are
produced along with affidavit to butress his contention about the
credentials of respondent no.3 having successfully completed the
various works of photography and videography. Mr. Shelat
contended that the respondent no.3 is recipient of prestigious
award Glory of Gujarat and Lalit Kala Gaurav Puraskar. Mr. Shelat,
also contended that respondent no.3 is conferred and assessed as
ISO 9001 service provider. Denying the contention raised by the
petitioner, Mr. Shelat contended that the petitioner has not placed
on record the single work clear certificate evidencing satisfactory
completion of the work stated to have been undertaken by the
petitioner. According to Mr. Shelat, the three firms viz. Saunak
Films, Royal Infotech and petitioner are in fact firms under the
control of one Mr. Tushar Rajput and same are run from the same
office. Mr. Shelat contended that Saunak Films having its office at
Gandhinagar was allotted work of videography in relation to the
work of Loksabha Election of 2019 and Nagarpalika Election
Vadodara and several notices were issued upon said firm for its
inability to provide the services. According to Mr. Shelat, though
the petitioner firm is shown to be a separate entity, it is controlled
C/SCA/3136/2021 ORDER
by the same person. Mr. Shelat contended that it is within the
discretion of the employer to award the contract to the best suitable
bidder and it is not sacrosanct to award the contract to the highest
or lowest bidder as the case may be. Mr. Shelat contended that
having verified the qualifications of the respondent no.3 and its
credentials, the work order has been allotted to the respondent
no.3. Mr. Shelat also contended that respondent no.3 is empaneled
for the very work with the Ahmedabad Municipal Corporation and
the decision taken by the respondent authority is in accordance
with law and does not violate any fundamental or legal right of the
petitioner. Mr. Shelat reiterated that the petitioner has not placed
any record as regards work completion. Mr. Shelat contended that
the contention raised by the petitioner that respondent no.3 has no
experience of work during the election process is far from truth and
same is made only with a view to misguide the Court. Mr. Shelat
contended that case of the petitioner, that respondent authority
allotted work with ulterior motive in favour of respondent no.3 is
also false. Mr. Shelat also contended that the petitioner has
participated in the process of selection and only because the
contract is not awarded in favour of the petitioner, present petition
is filed and petitioner now cannot seek to assess the method of
selection. Mr. Shelat also contended that petitioner on one hand
has asserted that the work could not have been awarded without
issuance of tender however, the petitioner has not prayed for
issuance of any tender. Mr. Shelat contended that work in terms of
the contact has also commenced and substantial part of the work
has been discharged. It was contended that the petitioner has the
alternative remedy of seeking remedy in the realm of private law
C/SCA/3136/2021 ORDER
and petitioner is not entitled for discretionary remedy under Article
226 of the Constitution of India and petition being misconceived
and deserves to be dismissed. Mr. Shelat contended that the
respondent authority after considering the bid given by the
respondent no.3 and considering the qualification of bidding
parties, has found respondent no.3 to be suitable for the purpose of
videography and photography work and therefore, same cannot be
termed with unreasonable or mala fide. On the aforesaid grounds,
Mr. Shelat contended that petition deserves to be dismissed.
7.0. No other and further submissions, contentions and grounds
have been raised by the learned advocates for the respective
parties.
8.0. Having considered the submissions made, it deserves to be
noted that election of Ahmedabad Municipal Corporation are
scheduled on 21.2.2021. It clearly recites that the authority has
considered the videography and photography order dated
14.3.2019 and having considered three offers received one from
the petitioner and other from the M/s. Royal Infotech and
respondent no.3 have given the work order to the respondent no.3.
The order impugned dated 30.01.2021 also further recites that
what has weighed in favour of the respondent no.3 for
specialization work of videography and photography during the
election process. The respondent authority has considered that the
respondent no.3 has worked as appointed photographer of Hon'ble
Governor of Gujarat since 30 years. It is also stated that the
respondent no.3 has a vast experience. It also clearly borne out
C/SCA/3136/2021 ORDER
from the order that after E tendering rates for videography and
photography were determined during the last Loksabha Election
2019 just year ago and in order to ensure smooth election process,
an experience agency be given work. The acceptance letter dated
27.01.2021 addressed by the respondent no.3 whereby respondent
no.3 agreed to work at 15% lower rates is also considered and also
considering the fact that Ahmedabad Municipal Corporation has to
bear the cost from its own funds, the respondent no.1 has taken a
conscious decision to allot the work to respondent no.3. It clearly
verified (page 78 of paperbook) that the petitioner vide
communication dated 25.1.2021 has sent an offer based upon
terms and conditions of the Loksabha General Election of 2019.
From the said communication, therefore, it clearly transpires that
the petitioner was well aware about the decision of the respondent
nos. 1 and 2 in giving work of videography and photography for
election of Corporation and District Panchayat by selection from
the existing panel of 2019 Loksabha General Election. Even
correspondence of petitioner with the authority including notice
dated 4.2.2021 does not speak of the fact that authorities should
have issued a tender instead of giving work order based upon the
work order of 2019 Loksabha Election. Having failed to get work
order, present petition is filed. Learned advocates for the
respondents are right in contending that no prayer is made by the
petitioner that the work should be allotted through tender only.
The record further shows that present petition is filed only after
failure on the part of the petitioner to get work order. The
allegation of mala fide are without any basis and petitioner now
cannot be permitted to asserted that the work order given to
C/SCA/3136/2021 ORDER
respondent no.3 is without inviting tender and therefore, it is mala
fide and / or for extraneous consideration. Affidavit in reply filed
by the respondent no.3 is accompanied by plethora of documents
which speak of vast experience and expertise of respondent no.3.
Mr. Shelat learned advocate for the respondent no.3 relying upon
the judgment of the Hon'ble Supreme Court in the case of Anupal
Singh and Ors vs. State of Uttar Pradesh through Principal
Secretary, Personnel Department and Ors reported in (2020) 2 SCC
173 contended that once having participated in the process and on
failure to get work order, the petitioner cannot revert back and say
that procedure smacks of mala fide. The documents produced by
the respondent no.3 show that respondent nos. 1 and 2 have
considered the credentials of respondent no.3, experience of
respondent no.3 and its expertise. It is also come on record that
respondent no.3 is on going contractor for videography and
photography for Ahmedabad Municipal Corporation and as per the
clause 2.3(2) of Chapter2 of the Hand Book2019 of Returning
Officer issued by State Election Commission, all the expenses for
the elections of the Municipal Corporation is to be borne by the
Corporations itself, it cannot be gainsaid that the impugned order
is unfair and unreasonable. Videography that too of a sensitive
procedure of election is no doubt a specialized work and is need
of hour for free and fair election. In such circumstances authorities
have to select best out of lot. The contention raised by Mr.
Motiramani, learned advocate for the petitioner that it would be
burden to exchequer is not the only criteria to be looked into when
such specialized public work is to be undertaken. Considering the
credentials of respondent no.3 which are eloquent from the
C/SCA/3136/2021 ORDER
documents attached with the affidavit in reply filed by the
respondent no.3 establishes the fact that the respondent no.3 as an
edge over the other two competitors as far as expertise and
experience of videography and photography is concerned. The
respondent authorities have rightly considered the experience of
respondent no.3 of three decades as an appointed photographer
and videographer of the Hon'ble Governor of Gujarat. The record
also indicates that respondent no.3 has also recipient of prestigious
award of Glory of Gujarat and Lalit Kala Gaurav Puraskar. Such
circumstances clearly establishes the fact of expertise of respondent
no.3. Considering the specialized work, price is not always vital
factor and specially in order to ensure free and fair election, the
selection of the respondent no.3 cannot be termed as unfair or
unreasonable. There is nothing on record to show that only in order
to give work to respondent no.3 such a procedure is followed by
the respondent authorities. Even at the cost of repetition, it
deserves to be noted that having failed to procure work order
though the offer was sent by the petitioner himself, the petitioner
cannot now be permitted to turn down and contend that same is
done without tender. The record indicates that petitioner
participated in the process based upon the earlier tender process
done by the respondent authorities during the last Loksabha
General Election, 2019 and only because other districts have
floated tender, the manner and method adopted by respondent
authorities in the present case cannot be termed as unfair and
unreasonable. The petitioner was well aware about the procedure
to be followed and participated in the same. It is matter of fact that
even after the impugned allotment letter was given to respondent
C/SCA/3136/2021 ORDER
no.3 petitioner asked respondent authority to consider / reconsider
his offer and therefore, contention raised by the petitioner that the
action is mala fide and / or unfair or unreasonable is without any
basis and same deserves to be negatived. It is also matter of fact
that after notification of election was issued at least from the date
of impugned order dated 30.01.2021 substantial work has already
been undertaken and election of Ahmedabad Municipal
Corporation are scheduled to be held on 21.02.2021 i.e. tomorrow
and the present petition as such filed on 12.02.2021 by the
petitioner. The authorities have evaluated the credentials of three
persons who offered including the petitioner and have found
respondent no. 3 to be the best. In such specialized work lowest
bidder is not the sole consideration but expertise and experience in
a particular work much less of work of videography and
photography has to be considered by the authorities. What is to be
ensured is its utility for ensuring free and fair election and when
such vital factors and aspects are to be considered, ability and
expertise has a greater weightage . Under such circumstances,
therefore, contention raised by the petitioner that impugned work
order would be additional burden on State exchequer looses its
significant. From the facts and record, it appears that respondent
no.3 is not an alien to the work of videography and photography
but has vast experience and expertise in such work, which has
prompted the respondent authorities to select the best
videographer and photographer for specialized work of
videography and photography of coming election of local
authorities. Even the contention raised by the petitioner that if the
tender would have been issued, the respondent no.3 would not
C/SCA/3136/2021 ORDER
have fulfilled the condition, it is totally without any basis or
foundation in the petition itself. All the contentions raised by the
petitioner, therefore, fail and petition is liable to be dismissed and
is hereby rejected. No costs.
(R.M.CHHAYA, J)
(R.P.DHOLARIA, J)
KAUSHIK J. RATHOD
