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2019 Supreme(Bom) 350
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
RANJIT MORE, BHARATI H. DANGRE, JJ.
M.K. ENTERPRISES - Appellant
Vs.
MUNICIPAL CORPORATION OF GREATER MUMBAI - Respondent
Writ Petition (L) No. 2885, 4145 of 2018
Decided on : 21-02-2019
Advocate Appeared:
Ravi Kadam, Adv., V.P. Sawant, Adv., Rahul Hakani, Adv., Niyati Hakani, Adv., Rajiv Chavan, Adv., Priyanka Chavan, Adv., Anupamaa Pawar, Adv., Neelam Kaintura, Adv., Sumangala Yadav, Adv., Rupali Adhate, Adv., P.K. Dhakephalkar, Adv., Kirit Hakani, Adv., Milind Sathe, Adv., Simil Purohit, Adv., Farhan Khan, Adv., Sagar Hate, Adv., Mangesh Avhale, Adv., Pankaj Uttaradhi, Adv., Anant Vadgaonkar, Adv.
Headnote:
*Right to Information Act – Circumstance evidence – Claim of compensation - Agreement for contracted work - Writ Petition is filed by petitioner a proprietorship concern who has bid in joint venture for carrying out works of transportation of Solid Waste Management for Municipal Corporation of Greater Mumbai hereinafter referred to as - First Writ Petition emanates from two orders passed by entertaining Appeal filed by the respondent a registered contractor of who was inflicted a penalty of debarment pursuant to a Departmental Enquiry and by two impugned orders debarment period is slashed - Petitioners are aggrieved by the said impugned orders since respondent being benefited by said orders has become eligible to participate in tender process floated by of vehicles for collection and transportation of Municipal Solid Waste – Held, above observations made by us are in backdrop of large scale deviation of procedural norms adopted by Corporation to favor a particular contractor and though serious objection is raised about maintainability petition being filed to question the procedural impropriety court feel that petition is liable to be entertained as it exposes working and functioning of a public body like Corporation and as how rules are twisted to shower favors on a particular contractor and court /have entertained the Writ petition though not a Public Interest Litigation. As far as the second petition is concerned we have noted the argument of learned senior counsel withdrawn a Writ Petition filed before this Court when interim relief was refused, we would observe that the Writ Petition came to be withdrawn in order to avail a remedy of appeal and the permission was granted by this Court to avail the said remedy. The present proceedings filed by the said contractor now questions the very order of debarment and therefore we do not feel it proper to shut such a remedy of judicial review which is otherwise available in exercise of Writ jurisdiction of this Court – Court have thus rejected the preliminary contention of both the respective parties appearing in the petitions - This Court had recorded a statement made on behalf of Corporation that period of two weeks work order in respect of the subject tender will be issued - Said statement continues till and date and resultantly the tender process initiated in pursuance of e-tender notice published by hire of vehicles for collection and transportation of municipal solid waste is not finalized is not sustainable court have no hesitation in permitting to allot work in pursuance of tender notice published in favor of lowest bidder Infrastructure court have heard both petitions together court are not inclined to grant Chamber Summons filed by Enterprises – Petition allowed
Bharati H. Dangre, J.
1. The above mentioned Writ Petitions revolve around the same set of facts and also involve a similar issue for adjudication and hence are taken up for hearing together. Since the parties agreed for hearing the petitions finally, we issue Rule and take up both the Writ Petitions for final hearing by consensus.
2. Writ Petition No.2885 of 2018 is filed by the petitioner, a proprietorship concern who has bid in joint venture for carrying out works of transportation of Solid Waste Management for the Municipal Corporation of Greater Mumbai (hereinafter referred to as 'MCGM'). The first Writ Petition emanates from two orders passed by the MCGM, entertaining the Appeal filed by the respondent No.11, a registered contractor of MCGM, who was inflicted a penalty of debarment, pursuant to a Departmental Enquiry and by the two impugned orders, the debarment period is slashed. The petitioners are aggrieved by the said impugned orders since the respondent No.11, being benefited by the said orders has become eligible to participate in the tender process floated by the MCGM on 08.05.2018 for hire of vehicles for collection and transportation of Municipal Solid Waste (MSW).
3. Before embarking upon the issue involved, a brief chronology of the facts is imperative. The respondent No.1 impleaded in the Writ Petition is the Municipal Corporation of Greater Mumbai and the respondent Nos.2, 3, 5, 6 and 7 are its Officers whereas respondent No.4 is the Chairman of the Standing Committee of the MCGM. The grievance of the petitioners revolve around respondent No.11 who is one of the contractor of MCGM who was subjected to a departmental enquiry which the MCGM conducted in relation to the outstanding payment towards the Civil works contract within its jurisdiction during the period 2005 to 2009 against its 12 delinquent Officers holding the post of Executive Engineers, Assistant Engineers and Superintendent Engineers and also certain contractors.
Pursuant to the full-fledged departmental enquiry by the enquiry officer Shri.M.M. Kamble, DMC (Vigilance), the report was submitted and the eight charges leveled against the Officer were held to be fully proved and they were indicted for their involvement in sanctioning the proposal and issuing various works orders to different contractors. The enquiry report recorded a finding of guilt against the contractors who were implicated with allegation of defrauding the MCGM.
The enquiry report records a finding that contractor M/s.Buildwell Infrastructure Pvt. Ltd. claimed the payment of 11 Construction Works Contract (CWC) carried out during the period from 2004 to 2006 on its letter head though the work was carried out by M/s.Buildwell Construction. The claim of Rs. 1.05 crore was staked by M/s.Buildwell Infrastructure Pvt. Ltd., and a representation was made to the Municipal Commissioner through the Municipal Contractors Construction Association (for short 'MCCA'). In the backdrop of the said allegations, the contractor was informed by the enquiry officer to furnish various documents related to the CWC works which were claimed to be executed and for which the outstanding dues of payment were raised to MCGM by them and to remain present for recording of their statement during the course of the enquiry. The statement of Mr.Suresh Mehta, Director of M/s.Buildwell Infrastructure Pvt. Ltd. was recorded and the Proprietor of M/s.Buildwell Construction Mr.Rajesh M. Jain authorized to represent and sign the statement in respect of the contract allotted to them did not attend the enquiry proceedings and hence the case was treated as ex parte.
The enquiry officer rejected the monetary claim, as sufficient material was not produced and mala fide intention was attributed to the contractor to defraud the MCGM and the penalty of debarment of the contractor for a period of six years was recommended so as to not allow the contractor to participate in the tender related to MCGM w.e.f. 16.03.2013. The s
