Gujarat High Court
Pramod Trading Company Through ... vs The Municipal Corporation Of The ... on 1 July, 2021
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/SCA/8085/2019 ORDER DATED: 01/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8085 of 2019
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PRAMOD TRADING COMPANY THROUGH PROPRIETOR RITA MEHTA
Versus
THE MUNICIPAL CORPORATION OF THE CITY OF SURAT
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Appearance:
MR SN SOPARKAR, SR.ADVOCATE with MR AMAR N BHATT, ADVOCATE
for the Petitioner(s) No. 1,2,3,4,5,6,7
MR KUNAL P VAISHNAV, ADVOCATE for the Petitioner(s) No. 1,2,3,4,5,6,7
MR AJAY S JAGIRDAR, ADVOCATE for the Respondent(s) No. 2
MR CJ VIN, ADVOCATE for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 01/07/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. By this writ-application under Article 226 of the
Constitution of India, the writ-applicants have prayed for the
following reliefs :
"(A) To issue an appropriate writ of mandamus and/or
certiorari or any other appropriate writ, order or direction
directing the Respondent No.1 to terminate the Agreement
entered pursuant to the tender No.AD City Engineer/Traffic/
07/2012-13 at Annexure-A allotted to the Respondent No.2
and float a fresh tender for all 14 Foot Over Bridges.
(B) To issue an appropriate writ of mandamus and/or
certiorari or any other appropriate writ, order or direction
directing the Respondent No.1 to take action against the
C/SCA/8085/2019 ORDER DATED: 01/07/2021
Respondent No.2 for its inaction and to comply strictly with
the tender terms and conditions.
(C) During the pendency and final disposal of petition,
direct the Respondent No.1 and 2 to remove the
Advertisement on the FOBs and terminate the Agreement
entered pursuant to the tender No.AD City Engineer/Traffic/
07/2012-13 at Annexure-A allotted to the Respondent No.2
and float fresh tender for 14 Foot Over Bridges.
(D) Award cost of this petition.
(E) Pass such other and further orders as may be deemed
just and expedient."
2. The facts giving rise to this writ-application may be
summarised as under :
3. All the writ-applicants before this Court are in the business
of outdoor advertising. In other words, they all work as
advertising agents in the city of Surat and other big cities of the
State of Gujarat. The writ-applicants want this Court to cancel
the Tender No.AD City Engineer/Traffic/07/2012-13 granted in
favour of the respondent no.2. The respondent no.2 is also in the
very same business like the one of the writ-applicants. The
tender referred to above was issued by the Surat Municipal
Corporation. The writ-applicants want this Court to terminate
the agreement entered into between the Surat Municipal
Corporation and the respondent no.2 and seek further direction
to the Surat Municipal Corporation to issue a fresh tender.
C/SCA/8085/2019 ORDER DATED: 01/07/2021
4. In the words of the writ-applicants themselves, they want
the agreement to be terminated for the following reasons :
"(i) There is a variance between the tender conditions and
the agreement entered after accepting the bid of the
respondent no.2.
(ii) At any rate, the respondent no.2 has misinterpreted
the tender terms and the agreement to suit its own
convenience to the detriment of the SMC and the public at
large, thereby causing loss of revenue to the SMC.
(iii) The respondent no.2 has violated the tender
conditions and the terms of the agreement and yet no action
are taken by the SMC.
(iv) The SMC is out to favour the respondent no.2 to the
detriment of the public at large.
(v) The SMC is acting in such a manner so as to promote
and grant to the respondent no.2 a virtual monopoly for
hoardings particularly on most important locations in the
Surat and that too for 30 long years."
5. We may pick up rest of the relevant facts from the
memorandum of the writ-application itself.
"2.3 The Respondent No.1, being a local authority, was
desirous of providing Foot Over Bridges ("FOBs" for short)
with a view to provide ease of crossing roads to the
residents of Surat City. There were already 2 FOBs within
the city of Surat which were also required to be updated
C/SCA/8085/2019 ORDER DATED: 01/07/2021
and made operable by maintaining them. The Respondent
No.1 intended to have 12 more FOBs design, build, operate
and transfer basis since it would involve substantial
expenses in creating them. SMC also intended to generate
revenue by giving advertisement rights on such FOBs. The
intention was that on the roads with heavy traffic, such
FOBs are provided at the earliest. Since the construction,
operation and maintenance of FOBs would require
substantial expenditure, it was thought by SMC to float
tenders inviting offers. It was therefore thought necessary
by SMC to give tender to person who would agree to update
the existing FOBs and construct 12 new FOBs within one
year from the date of the Agreement.
2.4 Therefore in or about July 2012, the Respondent No.1
floated another tender for construction, operation and
maintenance of other 12 new FOBs at specific location and
for maintaining and updating the 2 existing FOBs within
Surat city and for giving away the advertisement rights
thereon. One Chitra Publicity Company Private Limited was
the highest bidder. However, the said Chitra Publicity
Company Private Limited was not selected at the
preliminary evaluation stage of the tender since the
Respondent No.1 did not exempt the Petitioner No.1 from
payment of Earnest Money Deposit (EMD). The Respondent
No.1 did not recognize the certificate of registration granted
to the Chitra Publicity Company Private Limited under the
National Small Industries Corporation Limited which would
exempt the Chitra Publicity Company Private Limited from
payment of EMD. Chitra Publicity Company Private Limited
C/SCA/8085/2019 ORDER DATED: 01/07/2021
therefore challenged the said decision of SMC to eliminate
the Petitioner No.5 at the pre-evaluation stage by way of
Special Civil Application No.11839 of 2012 before this
Hon'ble Court which was unsuccessful since this Hon'ble
Court dismissed the Petition vide order dated 26/09/2012
(Copy at Annexure-B hereto). The Special Leave Petition
No.30202 of 2012 filed by the Chitra Publicity Company
Private Limited challenging the order of this Hon'ble Court
dated 26/09/2012 was also dismissed by the Hon'ble
Supreme Court by order dated 09/10/2012 (Copy at
Annexure-C hereto).
2.5 Since there was no other tenderer, the Respondent
No.2 herein was declared as successful tenderer. Since the
Respondent No.2 did not possess Provident Fund code at
the time when it submitted the bid, which was a mandatory
requirement under the Tender Conditions, the Chitra
Publicity Company Private Limited filed Special Civil
Application No.15062 of 2012 before this Hon'ble Court.
However, this Hon'ble Court vide order dated 06/11/2012
(Copy at Annexure-D hereto) dismissed the said Special Civil
Application.
2.6 In the meantime the Standing Committee of the SMC
passed a Resolution No.2292 of 2012 dated 28/09/2012
(Copy at Annexure-E hereto) accepting to award the contract
of such FOBs to the Respondent No.2. Interestingly, the said
Resolution relaxed the tender conditions for the Respondent
No.2 for the reasons best known to the Respondents herein
which is evident from the following:
C/SCA/8085/2019 ORDER DATED: 01/07/2021
(i) The Respondent No.1 permitted the Respondent No.2 to
place advertisements on the existing FOBs before its
updation with a view to helping the Respondent No.2 earn
revenues even before the Respondent No.2 would start the
work and incur any expenses.
(ii) Instead of payment of one year license fees which was
required to be paid in advance as per the tender conditions,
the Respondent No.2 was permitted to pay the license fees
on quarterly basis under the false pretext that the
Respondent No.2 was required to incur substantial capital
expenditure.
2.7 On 01/01/2013 at Annexure-AA an agreement was
entered into between the Respondents No.1 and 2. A
comparison of the Agreement with the tender conditions
would reveal substantial variations and changes between
both of them. The differences / variations / modifications /
changes between the tender terms and the terms of the
Agreement are compiled in the form of a chart by the
Petitioners which ts at Annexure-F hereto. The contents of
Annexure-G may be treated as a part of this Petition.
2.8 The Respondent No.1 was interpreting the tender
conditions and the terms of the agreement in such a way
that the Petitioners and other similarly situated advertisers
were deprived of putting up advertisements even in the
private properties falling within 600 mtrs. from both the
sides of the proposed FOBs. The Surat Outdoor Hoardings
C/SCA/8085/2019 ORDER DATED: 01/07/2021
Association made a representation dated 23/08/2013
(Copy at Annexure-G hereto) in this regard. The other
similarly situated advertisers challenged such
interpretation/action of the Respondent No.1 in this regard
by filing Special Civil Applications in the Gujarat High Court.
The said Petitions were disposed of. A copy of the order
dated 30/07/2014 passed in said Special Civil Applications
is annexed at Annexure-H hereto. Thereafter the Original
Contract was revised in light of the Samjuti Karar (Copy at
Annexure "HH").
2.9 It may be recalled that the intention behind such FOBs
was to provide ease to the residents of Surat city in crossing
roads at specific predefined location in the tower. Therefore,
it was imperative that such FOBs were constructed at the
earliest and within the time frame mentioned in the tender
and the Agreement. As per the RTI reply (Copy at Annexure-I
hereto) received by the Petitioner No.5, the said FOBs were
required to be constructed within one year. However, as on
today not only all the FOBs are not provided by the
Respondent No.2 inspite of passing of more than 5 years,
but also on the already constructed two FOBs, the
Respondent No.2 has not done anything to update them.
The Respondent No.2 was required to provide escalators
and lifts at the existing FOBs and also provide such
escalators and lifts for the new FOBs. However, nothing as
such is done. Thus as on today, only 6 FOBs are made. The
Respondent No.2 cannot be said to be complying with the
tender conditions and the Agreement. A detailed chart
showing the failures / inaction of the Respondent No.2 are
C/SCA/8085/2019 ORDER DATED: 01/07/2021
at Annexure-J hereto. The contents thereof may be treated
as part of this Petition. Not a Single FOB was constructed
completely in 1st year i.e between 1-1-13 to 31-12-13.
2.10 Under the agreement, the Respondent No.1 is
empowered to and entitled to take action against the
Respondent No.2 for defaults and failure of the Respondent
No.2 in carrying out / implementing the terms thereof.
Clause 7, 9 and 10 of the agreement is reproduced
hereinbelow for the sake of convenience:
"Clause 7 -- The Respondent No.2 has to take care that the
said tender is not for regular FOBs but for constructing the
World class FOBs and to maintain high standards for the
maintenance of the same and if there is any lapse in the
same then the Respondent No.1 has right to take action
including termination of the said tender.
Clause 9 -- If the escalator are non operational, the
Respondent No.2 would have to pay a penalty of Rs.1000
per escalator per day for number of days it remains not
operational unless of force majeure situations.
Clause 10 -- If the lift remains non operational for a day
then the Respondent No.2 is liable to pay Rs.500 as penalty
per day."
However, the Respondent No.1 has failed to take any action
against the Respondent No.2.
C/SCA/8085/2019 ORDER DATED: 01/07/2021
2.11 From the Annexures G and J, it is clear that the
Respondent No.1 is clearly favouring the Respondent No.2 to
the detriment of the public at large thereby causing loss of
revenue to the Respondent No.1. The Respondent No.1 is
thus acting in such a manner so as to promote and grant to
Respondent No.2 a virtual monopoly for hoardings by
granting advertisement rights on most important locations in
Surat and that too for 30 long years. The officers of the
Respondent No.1 are hands in glove with the Respondent
No.2. The Respondent No.1 has also given change of site for
placing the FOB to the Respondent No.2 from one zone to
another and that too about 6 KM away from the original
allotted site. This is nothing but a deliberate attempt on part
of the Respondent No.1 to allot the site of FOB not for the
public of Surat but to benefit the Respondent No.2 where the
Respondent No.2 would fetch higher revenues by placing
advertisement. The advertisement hoardings placed by the
Respondent No.2 on the said FOBs are contrary to the size
permitted as per the General Development Control
Regulations (GDCR) and that the size of the advertisement
placed on the FOBs is even contrary to the size mentioned in
the Tender/Agreement. The Respondent No.1 have shut
their eyes and is not taking any action against the
Respondent No.2 for the breach of GDCR and terms of the
Tender/Agreement. The terms of the Agreement and the
tender are substantially relaxed only for the Respondent
No.2 and with a view to benefit the Respondent No.2
financially. The Respondent No.1 has permitted the
Respondent No.2 to start earning revenues without incurring
any expenditure for FOBs from the date of agreement. Thus,
C/SCA/8085/2019 ORDER DATED: 01/07/2021
the Respondent No.2 is permitted to earn first by placing
hoarding on the existing FOBs and then spend for the other
FOBs, if at all, although all the FOBs are not even
constructed by the Respondent No.2. On such relaxation
being envisaged at the time of floating of the tender, the
Petitioners could have bid and offered even highest amounts
and the revenue of the Respondent No.1 could have
increased much more. Out of the 12 FOBs which were
required to be constructed by the Respondent No2 within
one year from the date of entering into the agreement i.e.
01/01/2013 to 31/12/13, the Respondent No.2 has only
constructed 6 FOBs till date leaving 6 FOBs yet to be
constructed. Thus, not only the purpose behind the floating
of the tender is frustrated because of the Respondent No.1
favouring the Respondent No.2 but also the Respondent
No.1 has suffered huge loss of advertisement revenue. The
said loss is increasing day-by-day since the Respondent
No.1 has chosen not to take any action against the
Respondent No.1 for its failure/non-implementation/non-
adherence to the terms of the agreement. The Petitioners
therefore, inspite of the fact that they had approached this
Hon'ble Court by various Petitions referred to hereinabove,
are constrained to file this Petition to point out the glaring
irregularities of the Respondent No.2 in the said tender/
agreement and a manifest abuse of power by the
Respondent No.1 to benefit only to the Respondent No.2 to
the detriment of the public at large.
The Outdoor Advertising Association of Surat sent a
representation dated 29.04.2019 (Copy at Annexure-K
C/SCA/8085/2019 ORDER DATED: 01/07/2021
hereto) received by the Respondent No.1 on 30.04.2019. By
the said representation, the Respondent No.1 was requested
to send a clarification and redress the grievance raised by
the said Outdoor Advertising Association of Surat in its
letters dated 23.08.2013 and 22.02.2014. The anomalies
and irregularities in the tender and its implementation were
also brought to the notice of the Respondent No.1. However,
so far nothing has been heard from the Respondent No.1."
6. On 9th June 2021, this Bench passed the following order :
"1. We have heard Mr. Mihir Thakore, the learned senior
counsel assisted by Mr. Amar Bhatt and Mr. Kunal
Vaishnav, the learned counsel appearing for the writ
applicants, Mr. Chandresh Vin, the learned counsel
appearing for the Surat Municipal Corporation and Mr. Ajay
Jagirdar, the learned counsel appearing for the respondent
No.2 at length.
2. We have been give more than a fair idea as regards
the subject matter of the writ application and the
controversy involved in this petition.
3. We direct the Surat Municipal Corporation to file a
detailed affidavit-in-reply highlighting the position of the
work of the fourteen over-bridges as on date. We want to
know from the Corporation whether the work has been
undertaken strictly in accordance with the terms of the
contract/agreement, original as well as revised or not. We
would also like to know from the Corporation whether the
C/SCA/8085/2019 ORDER DATED: 01/07/2021
respondent No.2 has yet to discharge any other obligations
and liabilities pursuant to the contract. We want a
responsible senior engineer of the Corporation to visit all the
sites and issue a certificate as regards the condition of the
over-bridges prevailing as on date and the work
undertaken. Such certificate shall be placed by the
responsible engineer by way of an affidavit-in-reply. The
replies, that may be filed on behalf of the Corporation, shall
be shared at the earliest with the learned counsel appearing
for the writ applicants as well as the respondent No.2. Let
this exercise be completed within a period of two weeks
from today.
4. Post the matter on 23rd June, 2021 on top of the
board for final disposal. Rejoinders, if any, shall also be
filed on or before 23rd June, 2021. One copy of this order
shall be furnished at the earliest to Mr. Vin, the learned
counsel appearing for the Surat Municipal Corporation for its
onward communication."
7. Pursuant to the aforesaid order, the Corporation filed its
reply dated 18th June 2021 duly affirmed by the In-charge
Executive Engineer, Surat Municipal Corporation, stating as
under :
"1. Surat Municipal Corporation floated tender in around
2012-2013 for construction of 12 Foot Overhead Bridges
and modernization of 2 Foot Overhead Bridges which were
already constructed by the Surat Municipal Corporation
(hereinafter referred to as the "Corporation" for the sake of
C/SCA/8085/2019 ORDER DATED: 01/07/2021
convenience and brevity). Successful bidder was required to
construct overhead bridges of international standard, and
also maintain the. One of the paramount conditions of the
tender was that locations and plans indicated in the tender
are tentative and are subject to modification in accordance
with place, traffic regulations, underground infrastructure
etc. Copy of the tender is produced herewith and is marked
as Annexure 'AA-1' to this affidavit.
2. Respondent No. 2 purchased the tender and offered
his bid. He stood successful and the contract was awarded
to respondent No.2. An official agreement was executed on
1502-2013. Copy of the agreement dated 15-02-2013 is
produced herewith and is marked as Annexure 'AA-2' to this
affidavit. I say that the above referred two conditions were
incorporated in the agreement. It may be mentioned that the
agreement also contained a condition that in the event due
to non-feasibility of construction of Foot Overhead Bridge at
a given site a new site is suggested the contractor shall
have to construct the bridge at that new site. If the
contractor denies to construct the bridge at the newly
suggested site he shall be given a deduction of license fee
for such bridge out of the total license fee payable to the
Corporation.
3. I say that out of 12 overhead bridges to be constructed
at the original site suggested in the agreement, there was a
change in site of 7 sites wherefrom bridge to be constructed
near Krishimangal Hall which was relocated near Mahavir
Hospital could not be constructed because of objections
C/SCA/8085/2019 ORDER DATED: 01/07/2021
raised by management of Mahavir Hospital and ors. It may
be mentioned that the skeleton of this bridge was already
constructed but this proposed foot overhead bridge was
directly obstructing the proposed Metro Railway line
alignment and hence it had to be demolished. Overhead
bridge to be constructed near Ved Road, Katargam, which
was proposed to be relocated near TGB Hotel Pal, is not
constructed. Overhead bridge to be constructed near
Railway Station, Varachha, was relocated near Poddar
Arcade on the Eastern side of the Railway station. This
bridge is also not constructed due to local resistance. The
construction of the bridge near Poddar Arcade had started
but by virtue of directions of the Commissioner, because of
representations from local people and representatives, on
15-06-2019 the construction was stopped. I say that the
construction of this bridge is not feasible because upon
crossing the Railway underbridge a road to the left abuts to
Ashwanikumar crematorium. Approximately 600 mts. away
from the Railway bridge there is a road intersection and
immediately thereafter an overhead bridge for vehicles, of
about 2.75 kms. in length starts. Therefore, construction of a
foot overhead bridge is not feasible. I say that accordingly
out of 14 foot overhead bridges 11 overhead bridges are
constructed and are operational.
4. I say that apart from 14 foot overhead bridges
wherefrom 11 are functional with amenities as per the
tender, proposals for construction of 20 more foot overhead
bridges have been received. A complete report is submitted
for further action in this regard on 30-09-2020. Copy of the
C/SCA/8085/2019 ORDER DATED: 01/07/2021
report is produced herewith and is marked as Annexure
'AA-3' to this affidavit.
5. It was stipulated that the contractor shall be permitted
to utilize 500 sq. mts. on the outside of the bridge for putting
hoardings and signboards and 200 sq. mts. on the inside of
the bridge. On 4 bridges the area permitted for display of
hoardings on the outside is more than 500 sq. mts. and on
the other bridges it is less than the permitted area. With
regards hoardings on the inside of the bridge it is submitted
that on 5 bridges there are no hoarding on the inside, and
on the remaining 6 bridges the area used is less than 50 sq.
mts. As against permitted area of 200 sq. mts. Thus against
a consolidated permitted area of 5500 sq. mts. of hoardings
on the outside the area used is 5248.15 sq. mts., and on the
inside against the permitted area of 2200 sq. mts. the area
used is 155.76 sq. mts. A statement showing the
abovementioned position is produced herewith and is
marked as Annexure 'AA-4' to this affidavit. According to the
agreement respondent No. 2 had to generate funds for
maintaining the bridges from the display of hoardings.
6. I say that out of 14 foot overhead bridges 11 bridges
are complete and operational. Remaining 3 bridges are held
not feasible and therefore, no final decision is taken on it.
The structure constructed of the bridge near Mahavir
Hospital is brought down. I say that I have provided the
information based on documents and reports in the
Corporation. I reserve my right to file further affidavit in the
event of necessity."
C/SCA/8085/2019 ORDER DATED: 01/07/2021
8. We also take notice of one additional affidavit filed on
behalf of the Surat Municipal Corporation, wherein the following
has been stated :
"1. This Hon'ble Court passed the Order dated 9/6/2021
(Copy at Annexure-A hereto) directing the Respondent No.1
-- SMC as under :
"We want to know from the Corporation whether the work
has been undertaken strictly in accordance with the terms
of the contract/agreement, original as well as revised or not.
We would also like to know from the Corporation whether
the respondent No.2 has yet to discharge any other
obligations and liabilities pursuant to the contract. We want
a responsible senior engineer of the Corporation to visit all
the sites and issue a certificate as regards the condition of
the over-bridges prevailing as on date and the work
undertaken. Such certificate shall be placed by the
responsible engineer by way of an affidavit-in-reply."
2. SMC has filed an affidavit dated 18/6/2021 enclosing
therewith the Report/Chart about the status work of FOBs
at Pages 198 -- 203. A bare perusal of the same would go
to show that the Affidavit and the report fall short of the
requirement of the Order dated 9/6/2021. It is apparent
that the Respondent No.1 is siding with Respondent No.2
with a view to benefit Respondent No.2
3(A) As per tender Clause 14 at page 17, the Respondent
No.2 was required to provide world class design, CCTV
C/SCA/8085/2019 ORDER DATED: 01/07/2021
cameras, dust bins, direction boards, fountains, modern
utilities, road dividers with greenery in 50 mtrs. area on
both sides of FOBs and also provide security service. The
FOBs were required to be made operative within one year.
In the Contract dated 01/01/2013, clause 4 at page 178 is
similar to clause 14 of the tender. The report submitted by
SMC is silent on the compliances on these and whether that
these requirements are fulfilled by the Respondent No.2. On
the contrary, the photographs enclosed with the Report
show that direction boards, fountain, road divider with
greenery and the security service are not provided by the
Respondent No.2. On 09/06/2021 and 23/06/2021 when
the representative of the Petitioner visited the sites, it was
found that there were no road dividers with greenery in 50
mtr. area on both sides in most of the cases. The direction
boards and the security services were also not found and
most of the requirements have not been fulfilled by the
Respondent No.2. I enclose herewith the photographs of
those sites as Annexure-B.
3(B) From pages 198 to 203, following becomes clear:
(i) Out of 12 FOBs to be newly constructed, 3 FOBs are
not constructed despite passing of more than 8 years from
the date of the work order and/or the agreement.
(ii) In 7 FOBs, the SMC has granted change of locations
on 16/05/2013.
(iii) If the road width on different locations mentioned on
page 166 is considered, it will be evident that on all
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locations where the road width is less than 50 mtrs., the
Respondent No.2 has been granted change of location with
a view to seeing that the Respondent No.2 gets benefited by
larger area of advertisement display. In 3 cases, the
distance between the original location and the changed
location is more than 50 kms. I enclose herewith the chart in
respect of the status of the work of FOBs as Annexure-C.
The contents of the chart may be treated as part of this
Affidavit.
3(C) The area mentioned by the SMC in its Report on which
the Respondent No.2 aimed to have displayed
advertisements is apparently incorrect. In this regard, the
attention is invited to pages 164, 165 and 166 wherein
tentative drawings of FOBs are given inter alia with areas
for display of advertisements. The actual size of the
advertisement is much more than the sizes mentioned in the
tender document.
3(D) The Respondent No.2 was permitted to start placing
the advertisements on 2 existing FOBs even before their
updation. No substantial changes have been made on the
said existing 2 FOBs by the Respondent. This way SMC
saw to it that Respondent No.2 does not have to incur
substantial capital expenditure for construction of the
remaining FOBs and the revenue generated from the
advertisements placed on the existing FOBs can be used by
the Respondent No.2 for construction of other FOBs.
4. The Respondent No.1 has also not disclosed as to how
much license fees have been paid by the Respondent No.2 to
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the SMC so far. The Respondent No.1 has not disclosed
about the action taken, if any, in terms of clause 7, 9, 10
page 53 of the Agreement dated 1/1/2013.
5. From what is stated above, it is clear that the affidavit
and the report of the SMC are far from satisfactory and they
are not in consonance with the order of this Hon'ble Court."
9. We have also taken into consideration the affidavit-in-reply
filed by the respondent no.2.
Sr. Location Sr.No. Location Date from Remarks.
No. of Original/ Changed which in use
Pages
202-
1 Varachha Main 3 Original 2.8.2014 - Tender Clause 14 (Page 17)
Road, Chopati. rebeautification - not complied.
- Work not completed within 1 year
from the date of work order i.e.
28.9.2012 or Agreement dated
1.1.2013.
- Escalator and lift were there but
not functioning on 9.6.2021.
2 APMC Market 5 Original 14.2.2014 - Tender Clause 14 (Page 17)
rebeautification - not complied.
- Work not completed within 1 year
from the date of work order i.e.
28.9.2012 or Agreement dated
1.1.2013.
- Lift was there but not functioning
on 9.6.2021.
3 Academy 4 Original 14.2.2014 - Tender Clause 14 (Page 17)
School, rebeautification - not complied.
Swaminarayan,
Udhna. - Work not completed within 1 year
from the date of work order i.e.
28.9.2012 or Agreement dated
1.1.2013.
- Escalator and lift were there but
not functioning on 9.6.2021.
4 Maan Darwaja, 6 Original 14.2.2014 - Tender Clause 14 (Page 17)
Ring Road. rebeautification - not complied.
- Work not completed within 1 year
from the date of work order i.e.
C/SCA/8085/2019 ORDER DATED: 01/07/2021
28.9.2012 or Agreement dated
1.1.2013.
- Lift was there but not functioning
on 9.6.2021.
5 Krushimangal 12 Changed to Mahavir - - Work is suspended since July
Hall. Hospital 2013.
- According to us near
Krushimangal Hall there was a
gantry already existing of the
Respondent No.2 and therefore this
change of site was asked and given.
6 Adajan Star 9 Changed to Near VR 13.4.2018 - Change of location permitted by
Bazaar. Mall, Y-Junction, SMC on 16.5.2013 but construction
Surat - Doomas completed in April 2018 after 5
Road. years.
- Lifts and escalators are there.
- Under the Clause 14 and 16 of the
Contract at Page 180 the new
location is given which is about 10
KM away from the original location
given. This change of site is to
benefit the Respondent No.2. Kindly
see averments in the Petition in
Para 2.11 at pages 6 and 7.
7 LP Savani Road. 11 Changed twice. 14.8.2020 - Permission for lift has been
First to Udhna 3 granted on 18.5.2018.
Road and then to
Udhna Zone - New location is given which is
Patrakar Colony. about 10 KM away from the original
location. This change of site is to
benefit the Respondent No.2.
8 Near Iskon Mall, 7 Original 14.2.2014 - Tender Clause 14 (Page 17)
Surat - Doomas rebeautification - not complied.
Road.
- Work not completed within 1 year
from the date of work order i.e.
28.9.2012 or Agreement dated
1.1.2013.
- Escalator and lift were there but
not functioning on 9.6.2021.
9 Ved Road, 13 TGB Hotel, Star No FOB is - Though change of location is
Qatargaam. Bazaar. constructed. sanctioned on 16.5.2013 FOB is not
made.
10 Bhagaal Cross 10 Adajan Patia, 15.2.2020 - Change of location sanctioned by
Road. Ghanmova Complex. SMC on 16.5.2013.
- Sanction for lift granted on
18.5.2018.
- New location is about 4 kms away
from the original location. Original
location is in old city and therefore
the change of location is given to
benefit Respondent No.2, since the
changed location is in better locality
for generating more revenue
through display.
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11 Railway Station, 14 Opp. Poddar FOB not Apparent reason given is that the
Varachha. Complex. constructed. competent Authority has to decide
the location.
12 Lambe 8 Pal Road, Opp. RTO 15.10.2017 - New location is 15 kms away from
Hanuman Road. Office. the original location.
- Though change of location was
sanctioned on 16.5.2013, the date
from which the FOB is said to be in
use is 15.10.2017.
10. From the aforesaid, the following is discernible :
(i) Out of 12 new FOBs to be made 3 are not made.
There is a delay in respect of 4 FOBs. In 7 FOBs change of
location has been granted under the guise of clauses 14
and 16 respectively of the agreement. However, the
distance between the original location and the changed
location in some cases is more than 10 kms.
(ii) Tender term No.14 has not been complied with.
(iii) With respect to the Clauses 7 and 10, no action so far
has been taken against the respondent no.2 in this regard.
11. We have heard Mr.S.N.Soparkar, the learned senior
counsel assisted by Mr.Amar Bhatt, the learned counsel
appearing for the writ-applicants, Mr.C.J.Vin, the learned
counsel appearing for the Surat Municipal Corporation and
Mr.Ajay Jagirdar, the learned counsel appearing for the
respondent no.2.
12. It is very apparent that the entire attack is on the
respondent no.2. The attack on the respondent no.2 is by none
other than the rivals or the competitors in the business. It is also
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very apparent that in the event the writ-applicants succeed in
the present writ-application and the Surat Municipal
Corporation is directed to issue a fresh tender notice after
terminating the agreement with the respondent no.2, then
obviously all the writ-applicants would be interested to
participate in the fresh tender process for their personal gain.
Ultimately, only one of the writ-applicants may succeed, but still
they all want to take a chance if at all a fresh tender notice is
issued by the Surat Municipal Corporation. They want the
Corporation to terminate the agreement entered into with the
respondent no.2 having regard to the alleged illegalities and
irregularities pointed out so that if fresh tender is issued, all the
writ-applicants can participate in the same.
13. In the course of hearing of this matter, we seriously called
upon the learned senior counsel appearing for the writ-
applicants to convince us on the issue of maintainability of the
present writ-application, more particularly, at the instance of the
writ-applicants. In reply, reliance has been placed on a decision
of the Supreme Court in the case of M.S.Jayaraj vs.
Commissioner of Excise, Kerala and others, reported in (2000) 7
SCC 552, wherein the Supreme Court has observed as under :
"11. Shri P. Krishnamurthy, learned senior counsel relied
on the decisions of this Court in the Nagar Rice & Flour Mills
and ors. vs. N. Teekappa Gowda & Bros. and ors. {1970 (1)
SCC 575}; Jasbhai Motibhai Desai vs. Roshan Kumar Haji
Bashir Ahmed & ors. {1976 (1) SCC 671}; Thammanna vs.
K. Veera Reddy and ors. {1980 (4) SCC 60}; Dr. Duryodhan
Sahu and ors. vs. Jitendra Kumar and ors. {1998 (7) SCC
C/SCA/8085/2019 ORDER DATED: 01/07/2021
273} in order to bolster up his contention that the third
respondent had no locus standi to maintain a petition under
Article 226 of the Constitution in respect of the impugned
order passed by the Excise Commissioner.
12. It is not discernible from the Judgment of the learned
Single Judge whether appellant had raised the issue of
locus standi before him. But appellant did raise it before the
Division Bench. In this appeal also he endeavoured to
contend that the right of the third respondent is not affected
by the order passed by the Excise Commissioner as the
licence granted to her is only for selling liquor in small
quantity and that too only to those persons who visit the
hotel and restaurant, whereas the appellant is not permitted
to sell it like that. We too feel that if the business of the third
respondent is to be carried on in accordance with the rules
such business cannot affect the business of the appellant. In
that view of the matter appellant would not be a rival trader
or a rival business contender for the third respondent.
Perhaps bearing in mind this aspect the third respondent
maintained the stand in the counter affidavit filed in this
Court that her objection against the order of the Excise
Commissioner is as a citizen of Karukachal Panchayat and
she is entitled to raise such objection.
13. In this context we noticed that this court has changed
from the earlier strict interpretation regarding locus standi
as adopted in Nagar Rice & Flour Mills and ors. vs. N.
Teekappa Gowda & Bros. and ors. {1970 (1) SCC 575} and
Jasbhai Motibhai Desai vs. Roshan Kumar Haji Bashir
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Ahmed & ors. {1976 (1) SCC 671} and a much wider
convass has been adopted in later years regarding a
persons entitlement to move the High Court involving writ
jurisdiction. A four Judge Bench in Jasbhai Motibhai Desai
(supra) pointed out three categories of persons vis-a-vis the
locus standi : (1) a person aggrieved; (2) a stranger; (3) a
busybody or a meddlesome interloper. Learned Judges in
that decision pointed out that any one belonging to the third
category is easily distinguishable and such person
interferes in things which do not concern him as he
masquerades to be a crusader of justice. The Judgment has
cautioned that the High Court should do well to reject the
petitions of such busybody at the threshold itself. Then their
Lordships observed the following: The distinction between
the first and second categories of applicants, though real, is
not always well demarcated. The first category has as it
were, two concentric zones; a solid central zone of certainty,
and a grey outer circle of lessening certainty in a sliding
centrifugal scale, with an outermost nebulous fringe of
uncertainty. Applicants falling within the central zone are
those whose legal rights have been infringed. Such
applicants undoubtedly stand in the category of persons
aggrieved. In the grey outer circle the bounds which
separate the first category from the second, intermix,
interfuse and overlap increasingly in a centrifugal direction.
All persons in this outer zone may not be persons aggrieved.
14. A recent decision delivered by a two Judge Bench of
this Court (of which one of us is a party Sethi, J.) in
Chairman Railway Board & ors. vs. Chandrima Das & ors.
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{2000 (2) SCC 465} after making a survey of the later
decisions held thus: In the context of public interest
litigation, however, the Court in its various judgments has
given the widest amplitude and meaning to the concept of
locus standi. In Peoples Union for Democratic Rights v.
Union of India {1982 (3) SCC 235} it was laid down that
public interest litigation could be initiated not only by filing
formal petitions in the High Court but even by sending
letters and telegrams so as to provide easy access to court.
[See also Bandhua Mukti Morcha v. Union of India {1984 (3)
SCC 161} and State of H.P. v. A Parent of a Student of
Medical College {1985 (3) SCC 169} on the right to approach
the court in the realm of public interest litigation.] In
Bangalore Medical Trust v. B.S. Muddappa {1991 (4) SCC
54} the Court held that the restricted meaning of aggrieved
person and the narrow outlook of a specific injury has
yielded in favour of a broad and wide construction in the
wake of public interest litigation. The Court further observed
that public spirited citizens having faith in the rule of law
are rendering great social and legal service by espousing
causes of public nature. They cannot be ignored or
overlooked on a technical or conservative yardstick of the
rule of locus standi of the absence of personal loss or injury.
There has, thus, been a spectacular expansion of the
concept of locus standi. The concept is much wider and it
takes in its stride anyone who is not a mere busybody.
15. In the light of the expanded concept of the locus standi
and also in view of the finding of the Division Bench of the
High Court that the order of the Excise Commissioner was
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passed in violation of law, we do not wish to nip the motion
out solely on the ground of locus standi. If the Excise
Commissioner has no authority to permit a liquor shop
owner to move out of the range (for which auction was held)
and have his business in another range it would be
improper to allow such an order to remain alive and
operative on the sole ground that the person who filed the
writ petition has strictly no locus standi. So we proceed to
consider the contentions on merits."
14. This matter has come up before us as we have been
assigned the determination of contract and tender matters. We
are of the view that we should not entertain this writ-application
at the instance of the writ-applicants. However, at the same
time, we are also of the view that we should not ignore the
various alleged lapses and irregularities which has come on
record. We are mainly concerned with two things : (i) the rate at
which the contract has been awarded by the Corporation, and (ii)
the manner in which the respondent no.2 has undertaken the
work of construction of the footbridges past almost nine years.
15. We take notice of the observations made by the Supreme
Court, more particularly, paragraph 23 in the case of
T.N.Godavarman Thirumulpad vs. Union of India and others,
reported in (2006) 5 SCC 28. We quote paragraph 23 thus :
"23. Some unions have also tried to jump into the fray by
filing applications seeking impleadment in these proceedings
so as to contend that the allotment is of a forest land. We
see no reason to allow the impleadment of parties in these
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proceedings. Be that as it may, we have to decide in the
light of facts aforenoted, whether the land leased to Maruti
is forest land or not. But before we examine the question of
the nature of the land being forest or not, it is necessary to
consider the bonafides of Deepak Agarwal who has
approached this Court in public interest. Howsoever genuine
a cause brought before a court by a public interest litigant
may be, the court has to decline its examination at the
behest of a person who, in fact, is not a public interest
litigant and whose bonafides and credentials are in doubt.
In a given exceptional case where bonafides of a public
interest litigant are in doubt, the court may still examine the
issue having regard to the serious nature of the public cause
and likely public injury by appointing an Amicus Curiae to
assist the court but under no circumstances with the
assistance of a doubtful public interest litigant. No trust can
be placed by court on a mala fide applicant in public interest
litigation. These are basic issues which are required to be
satisfied by every public interest litigation."
16. We also take notice of the decision of the Supreme Court in
the case of Neetu vs. State of Punjab and others, reported in AIR
2007 SC 758. We quote paragraph 12 thus :
"12. When a particular person is the object and target of a
petition styled as PIL, the court has to be careful to see
whether the attack in the guise of public interest is really
intended to unleash a private vendetta, personal grouse or
some other mala fide object."
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17. In such circumstances referred to above, we decline to
examine this matter at the behest of the writ-applicants.
However, at the same time, as stated above, we are of the view
that the Court should examine the issues having regard to the
serious nature of the public cause.
18. As we are of the view that this matter should be now
treated as one in public interest, let the matter be considered by
the court taking up the public interest litigation matters or as
may be directed by Hon'ble the Chief Justice.
(J. B. PARDIWALA, J.)
(VAIBHAVI D. NANAVATI, J.)
/MOINUDDIN
