Om Sai Vision A Proprietorship ... vs The State Of Madhya Pradesh Urban ...
2022 Latest Caselaw 15421 MP

                            - : 1 :-
      IN THE HIGH COURT OF MADHYA PRADESH
                         AT INDORE
                           BEFORE
             HON'BLE SHRI JUSTICE VIVEK RUSIA
                              &
      HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)

               ON THE 23rd OF NOVEMBER, 2022

             WRIT PETITION No. 25821 of 2022

  BETWEEN:-
  OM SAI VISION A PROPRIETORSHIP FIRM THROUGH
  PROPRIETOR SANTOSH KUMAR AGRAWAL S/O LATE SHRI
  HARISH CHANDRA AGRAWAL, AGED ABOUT 45 YEARS,
  OCCUPATION: BUSINESS FLAT NO. 3 AMAR STAMBH PLOT NO.
  16 PRESS COMPLEX ZONE 1 MP NAGAR BHOPAL (MADHYA
  PRADESH)
                                             .....PETITIONERS
  (SHRI VIKRAM BHATNAGAR, LEARNED COUNSEL FOR THE
  PETITIONER )


  AND
   THE STATE OF MADHYA PRADESH THROUGH PRINCIPAL
   SECRETARY URBAN ADMINISTRATION AND DEVELOPMENT
1.
   DEPARTMENT VALLABH BHAWAN BHOPAL (M.P.) (MADHYA
   PRADESH)
   THE COMMISSIONER UJJAIN MUNICIPAL CORPORATION
2.
   UJJAIN, DISTRICT UJJAIN (MADHYA PRADESH)
   THE COLLECTOR UJJAIN, DISTRICT UJJAIN (MADHYA
3.
   PRADESH)
                                           .....RESPONDENTS
  (SHRI RISHI TIWARI, LEARNED COUNSEL FOR THE RESPONDENT-
  2
This petition coming on for orders this day, JUSTICE VIVEK
RUSIA passed the following:
                        ORDER

The petitioner has filed the present petition seeking restoration of the two NIT's dated 26.07.2022 (Annexure P/1 and Annexure P/2) by executing the agreement and quashment of the

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fresh two NITs dated 19.09.2022 (Annexure P/7 and Annexure P/8).

Facts of the case in short are as under:-

[1] The Ujjain Municipal Corporation issued NIT dated 26.07.2022 No.2022_UAD_212994 for selection of agency for conducting survey for solid and liquid waste management and allied activities in all wards of UMC and another NIT dated 26.07.2022 No.2022_UAD_213006_1 for selection of agency for conducting IEC activities and allied activities in all wards of UMC.

[2] The petitioner participated in both the tenders process and stood L-1 in both the NITs. According to the petitioner vide letter dated 31.08.2022, the Assistant Commissioner UMC informed to the petitioner that out of two tender only one can be accepted therefore option be exercised. Vide reply letter dated 31.08.2022, the petitioner has accepted to do the work of Survey and extended NOC for another tender of i.e. IEC be awarded to other contractor. According to the petitioner instead of executing an agreement with petitioner, the UMC has issued fresh two NITs dated 19.09.2022 for aforesaid two works. The petitioner immediately submitted a representations to the Urban Administration and Development Department, Bhopal and Ujjain Municipal Corporation. The UMC submitted reply to the Urban Administration and Development Department, Bhopal that as per special condition of contract all three works shall not be awarded to one contractor.

[3] The petitioner has filed this petition on 09.11.2022 but it was in default as Writ Petition was not notarized by the notary, hence, office has raised objection. Vide order dated 14.11.2022, this Court has rejected an application for ignoring the defect and

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directed the petitioner to file notarize copy of petition. The petitioner has filed fresh memo of petition of duly notarized but notary did not sign within the round seal affix on all pages. Since, there was urgency in the matter,therefore, Shri Rishi Tiwari, learned counsel for the respondent was directed to file reply within two days.

[4] Today Shri Tiwari has filed the reply by submitting that the petitioner has approached this court without disclosing the fact about the participation in the subsequent bids and one day before the date of opening of financial bids, this Writ Petition was filed in defect. It is further submitted that second NIT was issued in the Month of September,2022 and petitioner has filed the writ petition in the Month of October,2022. Hence, petition is suffers from delay and latches. It is also submitted that the petitioner has not impleaded L-1 bidder in second round of NIT, hence, petition suffers from non-joinder of party. The respondent has placed reliance on the judgment passed by Apex Court in case of Municipal Corporation Ujjain and Anr.Vs. India Ltd and Ors reported in (2008) 5 SCC 462 in which the Apex Court has held that there can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. [5] Shri Tiwari further submits that in the second round of NIT the petitioner has not been found L-1 in both the tender, therefore, he cured the defect in writ petition and got it listed before this Court.

Heard.

[6] Second NIT was issued on 19.09.2022 and the last date of submission of NIT was 03.10.222. The petitioner participated in both the tenders by submitting bid. The petitioner has filed this

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petition on 09.11.2022 and alongwith petition an application for ignoring the default. Therefore, at the time of filing writ petition, the petitioner was aware that this petition is filed with major defects. The petition was not notarized by the notary, hence, office has rightly raised an objection about the defects. After the court order, petitioner has filed notarized copy of writ petition in which the notary has not put signature in the round seal. Whereas, Section 8 (2) of the Notaries Act,1952 provides that no act specified in sub-section (1) shall be deemed to be a notarial act except when it is done by a notary under his signature and official seal. The formate official seal is provided in Rule 12 of the Notaries Rules, 1956. The petitioner has filed the petition in advance and waited whether he comes as L-1 in subsequent tenders or not. On 10.11.2022, the bids were open in which the petitioner was not found L-1, therefore, the petitioner got listed the petition on 14.11.2022 challenging the action of respondent and execution of agreement in pursuant of the first NIT, therefore, the petitioner has not approached this Court with clean hand.

In view of above, writ petition is dismissed with cost of Rs.10,000/- (Rupees Ten Thousands Only). Same shall be payable in favour of Ujjain Municipal Corporation within 60 days.

                              (VIVEK RUSIA)             (AMAR NATH (KESHARWANI)
                                 JUDGE                          JUDGE

                              praveen


Digitally signed by PRAVEEN
NAYAK
Date: 2022.11.24 17:20:51
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