Khodiyar Enterprise vs The Municipal Corporation Of The ...
2021 Latest Caselaw 9869 Guj

   C/SCA/5557/2020                            JUDGMENT DATED: 29/07/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 5557 of 2020

                               With
       CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2020
          In R/SPECIAL CIVIL APPLICATION NO. 5557 of 2020

                               With
           R/SPECIAL CIVIL APPLICATION NO. 1025 of 2020
                               With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
          In R/SPECIAL CIVIL APPLICATION NO. 1025 of 2020
                               With
       CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2020
          In R/SPECIAL CIVIL APPLICATION NO. 1025 of 2020
                               With
       CIVIL APPLICATION (FOR JOINING PARTY) NO. 3 of 2020
          In R/SPECIAL CIVIL APPLICATION NO. 1025 of 2020

                               With
           R/SPECIAL CIVIL APPLICATION NO. 1026 of 2020
                               With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
          In R/SPECIAL CIVIL APPLICATION NO. 1026 of 2020
                               With
       CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2020
          In R/SPECIAL CIVIL APPLICATION NO. 1026 of 2020

                               With
           R/SPECIAL CIVIL APPLICATION NO. 4186 of 2020
                               With
         CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2020
          In R/SPECIAL CIVIL APPLICATION NO. 4186 of 2020
                               With
       CIVIL APPLICATION (FOR JOINING PARTY) NO. 3 of 2020
          In R/SPECIAL CIVIL APPLICATION NO. 4186 of 2020

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J.B.PARDIWALA

and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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       C/SCA/5557/2020                            JUDGMENT DATED: 29/07/2021




1      Whether Reporters of Local Papers may be allowed               NO
       to see the judgment ?

2      To be referred to the Reporter or not ?                        NO

3      Whether their Lordships wish to see the fair copy              NO
       of the judgment ?

4      Whether this case involves a substantial question              NO
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

==========================================================
                        KHODIYAR ENTERPRISE
                               Versus
           THE MUNICIPAL CORPORATION OF THE CITY OF SURAT
==========================================================
Appearance:
MAYANK K TRIVEDI(7906) for the Petitioner(s) No. 1
MR KK TRIVEDI(934) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR KAUSHAL D PANDYA(2905) for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
          and
          HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                            Date : 29/07/2021

                   COMMON ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. Since the issues raised in all the captioned writ-applications are the same and the parties are also same, those were taken up analogously and are being disposed of by this common judgment and order.

2. For the sake of convenience, we treat the Special Civil Application No.5557 of 2020 as the lead matter.

C/SCA/5557/2020 JUDGMENT DATED: 29/07/2021

3. By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs:-

"6(A) Be pleased to admit this petition;

(B) Be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other appropriate writ/s, order/s, direction/ s or declaration/s thereby quashing and setting aside (1) the aforesaid Termination Notice dated 01.02.2020 {Annexure- 'D' hereto} as well as (2) the impugned Resolution No.685 of 2019 dated 04.07.2019 {Annexure - "E" hereto} passed by the Standing Committee of the respondent;

(C) Pending admission, hearing and final disposal of this petition, be pleased to grant interim/ ad-interim/ ex-parte interim relief and further be pleased to stay further operation, implementation and execution of (1) the aforesaid Termination Notice dated 01.02.2020 {Annexure - 'D' hereto} as well as (2) the impugned Resolution No.685 of 2019 dated 04.07.2019 {Annexure - 'E' hereto} passed by the Standing Committee of the respondent in the aforesaid peculiar facts and circumstances of the case as well as in the interest of justice;

(D) Be pleased to pass any such other and/or further order/s, thought just and proper, in the interest of justice."

4. The facts giving rise to this writ-application may be summarized as under:-

4.1 The writ-applicant is a registered Partnership Firm. The present writ-application has been filed through one of the Partners of the said Firm. It appears that the writ-applicant was awarded contract by the Surat Municipal Corporation relating to the lifting, transporting and unloading the garbage and solid waste materials with the aid of tractors and hydraulic tipping trailers for a period of five years. It is the case of the writ-applicant that the work

C/SCA/5557/2020 JUDGMENT DATED: 29/07/2021

order was issued on 26.10.2018 and an agreement was also executed between the writ-applicant and the Corporation dated 09.01.2019 under the provisions of Sections-73 and 74 respectively of the Gujarat Provincial Municipal Corporations Act, 1949 [for short 'The Act, 1949'].

4.2 As per the contract, the writ-applicant was to utilize 32 tractors and hydraulic tipping trailers for a period of five years.

4.3 It is the case of the writ-applicant that the Corporation awarded contract for the East Zone, North Zone and South Zone of the City. The writ-applicant also furnished the security deposit amount to the tune of Rs.40,58,500/- [Rupees Forty Lac Fifty Eight Thousand Five Hundred Only] for the period between 12.12.2018 to 12.12.2024.

4.4 It is the case of the writ-applicant that he started with the contract work and has to recover an amount of Rs.1,15,00,000/- [One Crore Fifteen Lac Only] for the work already undertaken by him as per the contract upto 31.01.2020. It appears that the respondent no.2 herein brought few alleged irregularities in the tender process, which was taken cognizance by the Standing Committee of the Corporation and the Standing Committee passed a Resolution to terminate the contract w.e.f. 02.02.2020 and re-allot the tender work.

5. In view of the aforesaid, the writ-applicant had to come before this Court with the present writ-application.

C/SCA/5557/2020 JUDGMENT DATED: 29/07/2021

6. We have heard Mr. K.K. Trivedi, the learned counsel appearing for the writ-applicant and Mr. Kaushal D. Pandya, the learned counsel appearing for the Surat Municipal Corporation.

7. Why the Surat Municipal Corporation had to terminate the contract and re-allot the same, has been explained in the affidavit- in-reply filed on behalf of the Corporation. We quote the same as under:-

"7. I submit that before I reply the averments of petition, it is pertinent to mention that the present petitioner has also challenged the Resolution no.685 of 2019 dtd.04.07.2019 along with Termination Notice No.S.Z./Heath/1844 dtd.28.11.2019 by filing SCA/1025/2020, which is pending before this Hon'ble Court.

8. I submit vide a tender notice no.PHD/MOH/01/2018/19, the solid waste management department of the respondent - Corporation had invited the tender for Employment of tractors with hydraulic tripping trailer, with and without labour for lifting & transportation of Garbage. Soil mixed Garbage, for five years on Rate contract basis at different zone areas of Surat Municipal Corporation. I submit that the starting date to download the tender document was 31.05.2018.

9. I submit that pursuant to notice no.PHD/MOH/01/2018/19, respondent - Corporation received 16 Tenders however only 8 were found qualified. I submit that the standing committee in its meeting dtd.04.10.2018 passed resolution no.1250/2018 dtd.04.10.2018 to award the tender work to present petitioner in various zone of Surat Municipal Corporation on the condition mentioned in the resolution.

10. I submit that one M/s. Darbar Waste Corporation wrote letter dtd.08.05.2019 to respondent - Corporation and draw attention towards some irregularities committed by the successful bidders.

11. I submit that upon receipt of complaint from M/s. Darbar

C/SCA/5557/2020 JUDGMENT DATED: 29/07/2021

Waste Corporation the Ld. Commissioner of Respondent Corporation had constituted the committee of Dy. Commissioner, City Engineer, & Assistant Commissioner to look into the matter and to re-verify the tenders. I submit that the committee has prepared the report also prepared the revised list of qualified bidders. I submit that on 04.07.2019 Ld. Commissioner made proposal to Standing Committee to take decisions on the issues referred in the proposal.

12. I submit that pursuant to proposal the standing committee in its meeting dtd.04.07.2019 passed resolution no.685/2019 and revised the tender work allotment list.

13. I submit that respondent Corporation had initiated the procedure to implement the resolution/ instructions contained in the resolution and after that the termination notice no.N.Z./out/no.1110, dtd.01.02.2020 has been issued by the respondent Corporation and informed the petitioner that work order no.N.Z./out/931, dtd.28.11.2018 has been quashed and work is terminated from 02.02.2020.

14. I submit that fresh work order as per revised list has been issued to Darbar Waste Corporation on Dt.01/02/2020 vide Work Order No.NZ/OUT/1112 for North Zone (Katargam). I submit that the petitioner has not joined the Darbar Waste Corporation.

15. I submit that the present petitioner has consented the re- verification of bidders by issuing letter.

16. I submit that under the revised list the petitioner also getting the contract for East Zone (Varachha) SMC. I crave leave to refer the list at the time of hearing.

17. I submit that the nature of tender work is such if, it is stopped for single day the garbage mountain may be created in the city therefore, till new contractor starts the work the respondent corporation had allowed the petitioner to work. I submit that at present new contractor has started the work pursuant to work order dtd.01/02/2020.

18. I submit that respondent Corporation has carried out re- verification of qualified bidders and corrected the error committed in allotment of tender work. It is pertinent to point out that the respondent corporation has also initiated actions against erring official; some of the officers are suspended by the

C/SCA/5557/2020 JUDGMENT DATED: 29/07/2021

respondent corporation.

19. I submit that the petitioner has not joined the party to whom the work has been allotted therefore; also, the present petition deserves to be dismissed."

8. Thus, prima-facie, it appears that the respondent no.2 herein

- M/s. Darbar Waste Corporation created the trouble and also, succeeded in getting the contract awarded in its favour.

9. We take notice of the fact that there are highly disputed questions of fact involved in the present litigation. We would not like to interfere with the administrative decision taken by the Corporation to terminate the contract and re-allot the same in favour of the respondent no.2.

10. We may only observe that the Corporation shall take into consideration the request of the writ-applicant for refund of the security deposit and the amount to be paid for work, which was already undertaken by the writ-applicant upto 31.01.2020. In this regard, the writ-applicant shall go before the Standing Committee of the Surat Municipal Corporation and put forward its case for the refund of the security deposit amount as well as the amount to be paid for the work, which was already undertaken by the writ- applicant upto 31.01.2020. We are saying so in the peculiar facts and circumstances of this case. The Standing Committee of the Corporation shall hear the writ-applicant and take an appropriate decision as regards the refund as well as disbursement of the bill amount at the earliest.

C/SCA/5557/2020 JUDGMENT DATED: 29/07/2021

11. We clarify that for any other appropriate relief, it shall be open for the writ-applicant to avail appropriate legal remedy before the appropriate forum in accordance with law.

12. With the aforesaid, this writ-application is disposed of.

13. In view of the disposal of the present writ-application, the connected two writ-applications i.e.Special Civil Application No.1025 of 2020 and Special Civil Application No.1026 of 2020 respectively are also disposed of in the same terms.

ORDER IN SPECIAL CIVIL APPLICATION NO.4186 of 2020:-

14. This writ-application has been filed by a Society redressing the same grievance like one redressed by the ' Khodiyar Enterprise'. In the present case also, the contract came to be terminated.

15. In this writ-application, the reply has been filed by the Corporation as under:-

"5. I submit that by way of present petition, petitioner has challenged mainly following actions of the present respondent;

(a) Termination notice cum order dtd.13.09.2019 passed by the respondent with respect to EAST ZONE-B pursuant to Resolution No.685/2019 dtd.04.07.2019;

(b) Tender Notice No.PHD/DCHH/08/2019-20 published for CENTRAL ZONE, SMC;

(c) Notice cum order dtd.31.08.2019 pursuant to Resolution No.685/2019 dtd.04.07.2019 whereby terminated the work order dtd.24.12.2018 For CENTRAL ZONE;

(d) Termination Notice dtd.03.02.2020 pursuant to Resolution

C/SCA/5557/2020 JUDGMENT DATED: 29/07/2021

No.685/2019 for termination of work allotted in CENTRAL ZONE;

6. I further submit vide a tender notice no.PHD/MOH/01/ 2018/19, the solid waste management department of the respondent Corporation had invited the tender for Employment of tractors with hydraulic tripping trailer, with and without labour for lifting & transportation of Garbage/ Soil mixed Garbage, on rate contract basis at different zone areas of Surat Municipal Corporation. I submit that the starting date to download the tender document was 31.05.2018.

7. I submit that pursuant to notice no.PHD/MOH/01/2018/19 respondent Corporation received 16 tenders however only 8 were found qualified. I submit that the standing committee in its meeting dtd.04.10.2018passed resolution no.1250/2018 to award the tender work to successful bidders in various zone of Surat Municipal Corporation on the condition mentioned in the resolution.

8. I submit that one M/s. Darbar Waste Corporation wrote letter dtd.08.05.2019 to respondent Corporation and draw attention towards some irregularities committed by the successful bidders.

9. I submit that upon receipt of complaint from M/s. Darbar Waste Corporation, the Ld. Commissioner of respondent Corporation had constituted the committee of Dy. Commissioner, City Engineer, & Assistant Commissioner to look into the matter and to re-verify the tenders. I submit that the committee has prepared the report also prepared the revised list of qualified bidders. I submit that on 04.07.2019 Ld. Commissioner made proposal to Standing Committee to take decisions on the issues referred in the proposal.

10. I submit that pursuant to proposal, Standing Committee in its meeting dtd.04.07.2019 passed resolution no.685/2019 and revised the tender work allotment list.

11. I submit that respondent Corporation had initiated the procedure to implement the resolution/ instructions contained in the resolution no.685/2019 and informed all the allottee to whom work has been allotted pursuant to resolution no.1250/18, about the decision taken by the competent authority vide resolution no.685/2019 dtd.04.07.2019.

C/SCA/5557/2020 JUDGMENT DATED: 29/07/2021

12. I submit that fresh work order as per revised list has been issued on 03.02.2020 & 20.02.2020 to concerned bidders for various zone except Central Zone.

13. I submit that under the resolution no.1250/18 present petitioner was allotted work of 12 tractors in CENTRAL ZONE and work of 14 tractors in EAST ZONE-B. However, upon re- verification, it was found that present petitioner had not submitted Registration Book of tractors, therefore, work form both zone were terminated and work order for EAST Zone-B has been issued M/s. Khodiyar Enterprise on 03.02.2020 as per resolution no.685/2019. I further submit that M/s. Khodiyar Enterprise has also started work as per work order dtd.03.02.2020. I further submit that so far as CENTRAL ZONE is concern the petitioner was only successful bidder therefore, after terminating work allotted to petitioner, the respondent Corporation has initiated fresh tender process vide tender notice no.PHD/DCHH/08/2019-20 for central zone.

14. I submit that in the month of October 2019 the respondent Corporation has initiated the process vide Tender notice no.PHD/DCHH/08/2019-20 for the work for hiring tractors with hydraulic tripping trailers for period of four years collecting and transporting solid waste & garbage produce in CENTRAL ZONE in the city limit of SMC. I submit that somehow the tender process could not be completed before 31.12.2019, thereafter due to COVID-19 Pandemic the received bids could not be finalized. I submit that the nature of tender work is such if, it is stopped for single day the garbage mountain may be created during pandemic situation in the city therefore, till tender process completed the respondent Corporation has allowed the applicant to work and on 04.05.2020 the work order with effect from 01.01.2020 to 31.05.2020 or new agency be appointed which one is earlier, had been issued.

15. I further submit that meantime petitioner preferred Civil Application No.4 of 2020 in present Writ Petition to direct the respondent Corporation to allow him to continue the work. I submit that this Hon'ble Court was pleased to dispose of the civil Application No.4 of 2020 vide order dtd.25.06.2020.

16. I submit that upon opening of price bid one M/s. Khodiyar Enterprise found lowest one. However, as per policy decided by resolution no.437/2008, the consent has been obtained from the petitioner to undertake 50% work at lowest rate as offered by M/s. Khodiyar Enterprise and proposal has

C/SCA/5557/2020 JUDGMENT DATED: 29/07/2021

been forwarded to competent authority with all the facts for appropriate decision, however, other bidder M/s. Darbar Waste Corporation has raised objection against allotment of work to M/s. Khodiyar Enterprise and due to Local Authorities election the Model Code of conduct came into force, no decision could have been taken.

17. I submit that fresh work order as per revised list has been issued on 03.02.2020. I submit that the petitioner has not joined the bidders to whom work orders are issued on 03.02.2020. I also submit that petitioner was fully aware that new allottee has started the work pursuant to work order dtd.03.02.2020 however, said facts not disclosed in the petition.

18. I further submit that present petition barred by principle of res judicata as the petitioner has challenged the resolution no.685/19 dtd.04.07.2019 and notice dtd.31.08.2019 by filing SCA No.15720/2019 and the same has been dismissed as withdrawn by this Hon'ble Court vide order dtd.18.09.2019.

19. I submit that respondent Corporation has carried out re- verification of qualified bidders and corrected the error committed in allotment of tender work. It is pertinent to point out that the respondent Corporation has also initiated actions against erring official; some of the officers are suspended by the respondent Corporation."

16. This writ-application also deserves to be disposed of in the same terms like the connected writ-application. We leave it open for the Society to avail appropriate legal remedy before the appropriate forum in accordance with law.

ORDER IN CIVIL APPLICATIONs:-

The Civil Applications, if any, stand disposed of accordingly.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J) A. B. VAGHELA