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2008(3) ALL MR 240
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SWATANTER KUMAR, C.J. & J.P. DEVADHAR, J.
Vijay Kumar Gupta - Appellant
Versus
State of Maharashtra & Ors. - Respondents
Writ Petition No.1889 of 2007
Decided on : 13th March, 2008.
The jurisdiction of the Court under Article 226 of the Constitution of India is not strictly controlled by the procedural law as contemplated under Order XXIII of the Civil Procedure Code. In exercise of its equitable jurisdiction, where the Court finds that withdrawal of the writ petition is not bona fide and the request for withdrawal has been made to overreach the order of the Court, the Court would decline such a request. This is case where State largess is being distributed while entering into contract. The water is being withdrawn from the wells on commercial basis and it was admitted by all the counsel appearing for the parties that this is a pure and simple business and commercial transaction between the State and the private parties. Thus, there is no reason for excluding the persons who wish to participate in the tender. In fact, the conduct of the petitioner himself is not appreciable. He himself was enjoying the benefit of private contract. It is only when the Government had taken the decision to invite tenders for awarding of contract for the other two other points for withdrawal of water, that he opted to file this petition. For obvious reasons when the matter was exposed before the Court he opted to make the request for withdrawal of the petition. For obvious reasons when the matter was exposed before the Court he opted to make the request for withdrawal of the petition. This conduct is most unfair conduct not only of the petitioner and respondent No. 2 but even of the State. In this circumstance, Court had declined the request of the petitioner for withdrawal of the writ petition. Once the request is declined, the lis pending before the Court is required to be decided in accordance with law. The request for withdrawal was a mere camouflage for covering colourable and arbitrary exercise of power as the loss was being caused to the public at large and as well as to the State exchequer.
Thus, Court further directs the State to invite tenders for extraction and distribution of water from the Government owned wells which are subject-matter of the present writ petition as it has already been done in relation to other points of the well and award the contract to the person whose bid is highest in terms of revenue of the State. This exercise should be completed positively within a period of six weeks from the date of pronouncement of this judgment. No order as to costs.
SWATANTERKUMAR, C.J.:- Rule.
Rule made returnable forthwith. Heard parties.
Prelude Vijay Kumar Gupta, sole proprietor of M/s. Sanjay Transport Service, has filed this petition under Article 226 of the Constitution of India challenging the legality, propriety and validity of the contract awarded to M/s. Lirin Roadlines Pvt. Ltd., respondent No.2, vide Government Resolution No.WPP 2003/CR177/YSS2 dated 1 st September, 2006. This contract, according to the petitioner, has been awarded through private negotiations without inviting tenders and in an arbitrary manner.
Such awarding of contract is unconstitutional, violative of principles of governance and contrary to the constitutional mandate contained in Article 299 of the Constitution of India. It denies fair competition amongst similarly placed persons who hold similar qualifications like respondent No.2 for performing the function to lift water from the Government owned wells and distribute the same at a much higher amount than what has been demanded by respondent No.1 from respondent No.2, thus causing huge loss to the exchequer and is colourable exercise of power. Therefore, he has prayed for quashing and setting aside the Government Resolution dated 1st September, 2006.
2. Facts in brief:
2.1 According to the petitioner, there are two wells situated at Azad Maidan, one opposite B.M.C. Building, Mahapalika Marg and the other opposite Metro Cinema, owned by the Government of Maharashtra. The former is a smaller well which has one point for lifting water and has one pump of 5 Horse Power while the latter is a bigger well which has two commercial points and one non-commercial point for lifting water with a capacity of 10 Horse Power each. The larger well has higher water level i.e. 5 to 6 times more capacity than the smaller well.
2.2 On 31st December, 1987, contracts were given to respondent No.2 and one M/s. Zulekhs Mohd. Lorrywala for a period of 10 years which were to expire on 31st December, 1997. On or about 11th July, 1989, both these concerns were not permitted to fetch water from the well. M/s. Zulekhs Mohd. Lorrywala filed a writ petition in this Court which was dismissed vide order dated 20th August, 1999. Respondent No.2, thereafter moved City Civil Court and the matter was decided in favour of the said respondent. The City Civil Court permitted the said respondent to continue to fetch water for a term of ten years which was to expire on 30th December, 1997.
The said contract in favour of respondent No.2 was renewed without any reason on 21st December, 1994, three years prior to the expiry date, for a period of ten years which was to expire on 31st December, 2004. The contract in favour of respondent No.2 was again renewed vide G.R. No.AZM 1080/692 (6) SYS-2 dated 23rd February, 2004, ten months prior to the date of expiry, for a further period of ten years so as to expire in December, 2014. This was communicated vide letter dated 7th June, 2007, to the Deputy Director and amongst others to respondent No.2. The communication dated 7th June, 2004 reads as under :
"GOVERNMENT OF MAHARASHTRA
Urgent G.R. No.WPP-2003/C.R.177/
YSS 2
Social Justice, Cultural
Programmes, Sports and Special
Assistance Department, Mantralaya Annex Bhavan,
Mumbai-400 032.
Date: 7th June, 2004.
To
Dy. Director,
Sports & Yuvak Seva,
Mumbai/Nashik Division, Mumbai.
Sub.: Regarding contract of pumping the water from the Govt. Well situated at Azad Maidan, Opp.
Metro Cinema.
M/s. Lirin Road Lines Pvt. Ltd., Mumbai.
Ref. : (1) G.R. No.AZM-1080/692 (6) SYS-2 dated 23.2.2004 of this Department.
(2) Your letter No. M.A.D.IN. No.
10/LRL/D-7/422, dated 25.3.2004 addressed to Director, Sports and Yuvak Seva, Pune.
With reference to the letter as referred at above reference No.2 this is to inform you that vide the G.R. As referred in above ref. No.1 the extension for further 10 years from December, 2004 is given to M/s. Lirin Road Lines Pvt. Ltd., Navroji Hill Road No.9, Plot no.8, Dongari, Mumbai-400 009 for draw
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