Bombay High Court
Shri Vishal Ishwar Kulthe vs The State Of Maharashtra on 4 December, 2012
Author: D. D. Sinha
Bench: D.D. Sinha, V.K. Tahilramani
krs PIL148.2011
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTERST LITIGATION NO. 148 OF 2011
Shri Vishal Ishwar Kulthe ]
Age: 27 years, Occupation : Contractor ]
R/at. B/4, Prince Apartment, ]
Artillery Center Road, ]
Behind Anuradha Theatre, ]
Nashik Road, Nashik ] ..Petitioner
V/s.
1. The State of Maharashtra ]
through the Secretary to the ]
Urban Development Department, ]
Mantralaya, Bombay. ]
2. The Nashik Municipal Corporation ]
a Statutory Body constituted under ]
the provisions of the Bombay ]
Provincial Municipal Corporation ]
Act, 1949, through the Commissioner]
Nashik. ]
3. The Commissioner, ]
Nashik Municipal Corporation, ]
Nashik. ]
4. M/s. Konark Infrastructure Ltd. ]
having its office at 1st floor, ]
Konark Plaza, Near Sapana Talkies ]
Ulhasnagar. ] ..Respondents
...
Mr. V. R. Chavan for the petitioner.
1/24
::: Downloaded on - 09/06/2013 19:27:31 :::
krs PIL148.2011
Mr. A. I. Patel, Asstt. Government Pleader for respondent no. 1.
Mr. L. M. Acharya for respondent nos. 2 and 3.
Mr. V. R. Manohar, Senior Advocate i/b. Mr. Amit Gharte for resp. no.4.
....
CORAM : D. D. SINHA AND
SMT. V. K. TAHILRAMANI, JJ.
Judgment Reserved on : 02.11.2012.
Judgment Pronounced on : 04.12.2012.
JUDGMENT (Per D. D. Sinha, J.)
Heard the learned counsel for the petitioner, learned Assistant Government Pleader for respondent no.1, learned counsel for the respondent nos. 2 and 3 and learned counsel for the respondent no. 4.
2. The learned counsel for the petitioner has submitted that the petitioner is seeking quashing and setting aside the tender notices dated 30.3.2011 and 11.4.2011, as well as the General Body Resolution dated 5.5.2011, Resolution of Standing Committee dated 12.5.2011 and the Letter of Acceptance dated 12.5.2011 issued in favour of the respondent no. 4 as well as revocation of Work Order issued in favour of the respondent no. 4. The counsel for the petitioner has contended that the grievance of the petitioner is in respect of tender notices dated 30.3.2011 2/24 ::: Downloaded on - 09/06/2013 19:27:31 ::: krs PIL148.2011 and 14.4.2011 issued by the respondent no.2-Corporation whereby offers were invited for appointing Octroi and Escort Fees Collection Agent for Nashik Municipal Corporation for the financial year 2011-2012, on the ground that vide Government Resolution dated 19.4.2011 the respondent-
Corporation was required to fix upset price as per clause 1(b) of the said Government Resolution. It is submitted that as per the said clause, the upset price for financial year 2011-2012 ought to have been 15% more than the upset price which was fixed for the financial year i.e. 2011- 2012. The counsel for the petitioner has submitted that the Government Resolution was binding on the Corporation in view of the provisions of Section 66A of the Bombay Provincial Municipal Corporation Act, 1949.
It is contended that the General Body of the Corporation vide Resolution dated 5.5.2011 has chosen not to apply the said criteria for the financial year 2011-2012. The counsel has submitted that last date of submission of tender was 26.4.2011 and the Government Resolution was issued on 19.4.2011 and, therefore, it was not only binding on the Corporation to follow the procedure in fixing the upset price as stated in the said Government Resolution, but it was incumbent on the Corporation to follow the said procedure. It is contended that the decision of the Corporation not to apply the said criteria in respect of the present tender 3/24 ::: Downloaded on - 09/06/2013 19:27:31 ::: krs PIL148.2011 process for financial year 2011-2012 is bad in law and has resulted in causing great loss to the exchequer.
3. Counsel for the petitioner, however, has fairly stated that since the contract period is already over, the petitioner is only seeking a writ of mandamus directing the respondent no. 1 - State of Maharashtra to initiate disciplinary inquiry against the respondent nos. 2 and 3 and the other officers/members who have willfully and deliberately refused to implement the Government Resolution dated 19.4.2011 which was binding on the Corporation. In order to substantiate his contention, reliance is placed on the decision of this Court dated 10.5.2012 rendered in Writ Petition No.3754 of 2012 [M/s. Monarch Infrastructure Pvt. Ltd.
v. Ulhas Nagar Municipal Corporation & Anr. Similarly, reliance is also placed on the decision of this Court in Subhash R. Acharya v. State of Maharashtra & Ors. [2007 (6) Bom. C.R. 100].
4. The learned Assistant Government for the State has submitted that in the instant case, tender notices were issued on 30.3.2011 and 14.4.2011 by the respondent-Corporation and the last date of submission of the tender was 26.4.2011. However, the State Government before the 4/24 ::: Downloaded on - 09/06/2013 19:27:31 ::: krs PIL148.2011 last date of submission of tender issued Government Resolution dated 19.4.2011 in which it is stated that the same is applicable to Municipal Corporations and Municipal Councils in the whole State of Maharashtra and, therefore, these bodies are required to follow the procedure stipulated thereunder while issuing tender notice and finalising the tender pursuant thereto.
5. The stand of the respondent-Corporation is that the General Body of the Corporation vide Resolution dated 5.5.2011 decided not to apply the said Government Resolution to the financial year 2011-2012 since the same was prospective in nature and came to be issued only after tender notices were published in the newspaper. It is contended that the Corporation vide Resolution dated 5.5.2011 decided not to apply the said Government Resolution to the tender process initiated by issuing tender notices dated 30.3.2011 and 11.4.2011 for the financial year 2011-2012.
The Government Resolution being prospective in nature even otherwise could not have been made applicable to the tender process which was already commenced prior to issuance of the Government Resolution dated 19.4.2011. It is also the case of the Corporation that the Government Resolution more or less is in the form of guidelines and unless the said 5/24 ::: Downloaded on - 09/06/2013 19:27:31 ::: krs PIL148.2011 guidelines are adopted by the Corporation, it cannot be made applicable to the tender procedure already undertaken by the Corporation by issuing notices inviting bids for collection of Octroi and Escort Fees based on the procedure which was then existing. In the instant case, the General Body of the Corporation vide Resolution dated 5.5.2011 decided not to apply the said Government Resolution /circular/guidelines in respect of the process in question which was already commenced. It is therefore contended that the contentions canvassed by the counsel for the petitioner are misconceived and cannot be accepted. It is further submitted that the period of tender is over and therefore the PIL virtually has become infructuous.
6. The learned counsel for the respondent no. 4 has submitted that the challenge(s) raised in the PIL to the Resolution of the General Body dated 5.5.2011 and award of contract in favour of the respondent no.4 has become infructuous in view of completion of the period of contract on 18.5.2012.
7. The counsel for the respondent no.4 has submitted that Government Circular dated 19.4.2011, assuming to be mandatory without 6/24 ::: Downloaded on - 09/06/2013 19:27:31 ::: krs PIL148.2011 admitting the same, does not have retrospective application. In the instant case, the tender process was set in motion on 30.3.2011 and rescheduled from time to time, the last date being 18.4.2011. The Government Circular does not indicate that it has retrospective application. It is vehemently contended that the tender process was based on the earlier Government Resolution which at the relevant time was holding the field and, therefore, the same is valid and sustainable in law and is also saved notwithstanding issuance of the Government Circular dated 19.4.2011. In order to substantiate his contention, reliance is placed on the decision of this Court in Sangharsh Kruti Samiti v. State of Maharashtra & Ors.
(2007 (1) Bom. C.R. 712).
8. The learned counsel for the respondent no.4 has further contended that in the instant case, the petitioner has not made any demand nor there is any prayer for seeking damages and in absence thereof a writ of mandamus cannot be issued by this Court. To substantiate this contention, reliance is placed on the decision of the Apex Court in Saraswati Industrial Syndicate Ltd. etc. v. Union of India (AIR 1975 SC 460); of this Court in Shashikala Parashar v. State of Goa & anr. (1998 (2) Mh.L.J.205) and of the Apex Court in Commissioner of Income-tax, 7/24 ::: Downloaded on - 09/06/2013 19:27:31 ::: krs PIL148.2011 Bombay v. Scindia Steam Navigation Co. Ltd. (AIR 1961 SC 1633).
9. The learned counsel for the respondent no.4 further contended that there is an inordinate delay caused by the petitioner in filing the PIL. The PIL is filed almost six months after the contract was awarded in favour of the respondent no.4 and there is no explanation whatsoever given in the PIL for delay and, therefore, same is liable to be dismissed on this count.
Reliance is placed on the decision of the Apex Court reported in State of M.P. & Ors. v. Nandlal Jaiswal & Ors. (AIR 1987 SC 251).
10. We have considered the contentions canvassed by the learned respective counsel for the parties. Following relevant facts are brought to the notice of this Court by the counsel for the parties:-
(i) On 30.3.2011 notice was issued inviting offers for appointment of agent for collection of Octroi and Escort Fees for the year 2011-2012. Fresh notice inviting offer for appointment of agent with the same terms and conditions was issued on 11.4.2011.
The last date for sale of tender document was 18.4.2011 which was extended upto 26.4.2011. The date for the opening of the bid was on 26.4.2011.
8/24 ::: Downloaded on - 09/06/2013 19:27:31 ::: krs PIL148.2011
(ii) On 19.4.2011 the State Government issued Resolution No.
2011/PK 11/UDD-34 laying down the guidelines for appointment of Octroi Collection Agent which was received by the Corporation on 26.4.2011. One of the stipulations in the said Government Resolution was that the estimated price to be increased by 15% on year to year basis which was earlier 10%. The earnest money deposit was increased to 10% of the estimated price or Rs.10,00,000/- whichever is minimum (earlier it was 5% of the estimated price), security deposit was reduced to 10% (earlier it was 16%).
(iii) On 26.4.2011 the respondent no. 4 as well as Sahakar Global Limited filed tender bids along with Global Infrastructure Limited whose bid was disqualified on technical ground.
(iv) On 5.5.2011 Resolution was passed by the General Body of the Municipal Corporation not to implement the Government Resolution dated 19.4.2011 for the following reasons:
(a) Earlier orders/directions dated 3.3.1995 requires a rise of 10% only in the estimated price and, accordingly, 10% increase in the estimated price was provided in the present tender.
(b) Resolution of the General Body was passed for increasing 9/24 ::: Downloaded on - 09/06/2013 19:27:31 ::: krs PIL148.2011 estimated price by 10% more than the previous year.
(c) The tender process had reached its final stage and cannot be aborted. More so, the contractor needed to be appointed on 18.5.2011 since the earlier contract was to end on 18.5.2011.
Within such short time it was not possible to restart the tender process.
In case the tender process was started afresh, it would take three months to complete. The entire process and the earlier Octroi Collection Contract would have to be extended at the old contract price of Rs.474.0 crores.
(v) Terms and conditions fixed by the Corporation for tender process 2010-11 were also challenged and the same were upheld by the High Court of Bombay on 29.4.2010 and a challenge to the same was rejected by the Supreme Court. The same conditions have been adopted in the present year. The offer of the petitioner of Rs.600.00 crore was also considered by the General Body and was rejected as the petitioner is a black listed contractor.
(vi) Octroi Collection and Toll Collection are altogether different functions. Toll Collection is a simple task and requires minimum infrastructure. Octroi collection is a specialised job involving 10/24 ::: Downloaded on - 09/06/2013 19:27:31 ::: krs PIL148.2011 complicated functioning. Thus there cannot be similarity in both jobs.
(vii) The Government Resolution dated 19.4.2011 did not indicate that it could be made applicable retrospectively.
(viii) The decision of the General Body was communicated to the petitioner vide communication dated 6.5.2011 by the respondent Corporation. The contract was awarded to M/s. Konark Infrastructure Ltd. (highest bidder) on 12.5.2011 and the respondent no.4 started work with effect from 19.5.2011.
(ix) The petitioner filed Civil Application for grant of interim relief which was refused by this Court on 13.5.2011 against which the petitioner moved the Apex Court by way of SLP No. 4033 of 2011 which was at later point of time withdrawn by the petitioner.
(x) The contract was performed and executed by the respondent no.4 on 18.5.2011.
11. On the backdrop of the above referred facts and circumstances as well as the contentions canvassed by the respective counsel for the parties, the following questions arise for consideration of this Court, viz.:
11/24 ::: Downloaded on - 09/06/2013 19:27:31 :::krs PIL148.2011 (1) Whether the tender process initiated by the respondent Corporation vide tender notice dated 30.3.2011 as well as 11.4.2011 shall be governed by the terms and conditions mentioned in order / direction dated 3.3.1995 which required rise of 10% in the estimated price or the terms and conditions mentioned in the Government Resolution dated 19.4.2011 which required 15% rise in the estimated price than the previous year?
(2) Whether the Government Resolution dated 19.4.2011 was prospective or retrospective in nature?
(3) Whether a writ of mandamus can be issued by this Court in the absence of any demand or prayer made for seeking such directions?
12. Considered the facts and circumstances which have given rise to the filing of the present PIL and contentions canvassed by the learned respective counsel for the parties as well as the decisions cited by them.
In the instant case, the second tender notice inviting offers for appointment of agent was issued on 11.4.2011 for the year 2011-12. The last date of submission of tender form was 26.4.2011 and the date of opening of bid document was also on 26.4.2011. The respondent-
Corporation as per the order or decision dated 3.3.1995 which was 12/24 ::: Downloaded on - 09/06/2013 19:27:32 ::: krs PIL148.2011 holding the field increased the estimated price by 10% of the estimated price of the previous year i.e. 2010-2011. It is not in dispute that when the first and second tender notice inviting bids were issued by the respondent-Corporation, the policy and procedure which was in existence as per the order or direction dated 3.3.1995 required increase of estimated price by 10% only of the estimated price of the previous year and, therefore, the requisite clause in this regard was provided in the tender in question. In view of the above facts, it is evident that the tender process was commenced on 3.3.2011 when the first notice was issued inviting offers for appointment of agent for collection of octroi escort fee for the year 2011-12. The procedure which was holding the field at that time and was stipulated in the decision dated 3.3.1995 was provided in the tender in question which required rise of 10% only.
13. It is no doubt true that the State Government issued Resolution on 9.4.2011 laying down the guidelines for appointment of octroi collection agent which was received by the Corporation on 26.4.2011 which required the Corporation to increase the estimated price by 15% of the estimated price of the earlier year. The grievance of the petitioner is that the Corporation ought to have followed the procedure for appointment of 13/24 ::: Downloaded on - 09/06/2013 19:27:32 ::: krs PIL148.2011 octroi collection agent stipulated in the Government Resolution dated 19.4.2011. Failure on the part of the Corporation to follow the said procedure, according to the petitioner, has vitiated the entire tender process and, therefore, the petitioner has filed the present PIL for quashing of the tender notices, letter of acceptance dated 12.5.2011 issued in favour of the respondent no.4 as well as revocation of Work Order. In the instant case, it is not in dispute that the contract was awarded to M/s.Konark Infrastructure Limited (highest bidder - respondent no.4) on 12.5.2011, the respondent no.4 started work with effect from 19.5.2011 and the contract was performed and executed by the respondent no.4 on 18.5.2011. It is in these circumstances that the learned counsel for the petitioner has fairly submitted that the petitioner now is only seeking a writ of mandamus directing the respondent no.1 State of Maharashtra to initiate disciplinary inquiry against the respondent nos.2 & 3 and the other officers/members who have wilfully and deliberately refused to implement the procedure stipulated in Government Resolution dated 19.4.2011 which was binding on the Corporation and, therefore, pressed in action only prayer clause (f) of the PIL.
14. The learned counsel for the respondents have submitted that the 14/24 ::: Downloaded on - 09/06/2013 19:27:32 ::: krs PIL148.2011 Corporation was justified in following the procedure regarding increase in the estimated price which was holding the field at the time of commencement of the tender process and, therefore, all the actions taken by the Corporation pursuant to the show cause notices issued are saved in view of the provisions of section 7(e) of the Bombay General Clauses Act, 1904 and those actions cannot be rendered invalid in view of the Government Resolution dated 19.4.2011 which was issued by the Government subsequent to the commencement of the tender process and the same was also prospective in nature. In order to substantiate this argument, reliance is placed on the Division Bench decision of this Court in Sangharsh K. Samiti v. State of Maharashtra & Ors., reported in 2007 (1) Bom. C.R. 712. The relevant observations made by the Division Bench based on the decisions of the Supreme Court are in paragraphs 16 to 20 of the judgement which read thus:-
"16. In order to consider this aspect, it will be appropriate to refer to the relevant observations made by the Apex Court in paras (65) and (66) of its judgment in the case of State of Orissa and others (cited supra), which read thus :
"65. Yet another contention raised by the contesting respondents with respect to the impugned provisions was that the two notifications dated December 29, 1977, having been made in `supersession' of all previous notifications issued on the subject, the effect was to wipe out all tax liability which had 15/24 ::: Downloaded on - 09/06/2013 19:27:32 ::: krs PIL148.2011 accrued under the notifications dated May 23, 1977.
The High Court held that to hold that the liability was so wiped out would amount to giving a retrospective effect to the notification dated December 29, 1977 and as the Legislature had not conferred upon the State Government, the power to issue notifications having retrospective effect, to so hold would be to render the said notification void.
The High Court referred to a number of decisions on the question of the power to make subordinate legislation having retrospective effect.
66. ...... In the notifications dated December 29, 1977, the word `supersession' is used in the same sense as the word `repeal' or rather the words "repeal and replacement". The Shorter Oxford English Dictionary, third edition, at page 2084, defines the word `supersession' as meaning "The action of superseding or condition of being superseded". Some of the meanings given to the word `supersede' on the same page in that dictionary which are relevant for our purpose are "to put a stop to; to render superfluous or unnecessary; to make of no effect; to annul; to take the place of (something set aside or abandoned); to succeed to the place occupied by; to supply the place of a thing". Webster's Third New International Dictionary at page 2296 defines the word `supersession' as "the state of being superseded : removal and replacement". Thus, by using in the notifications dated December 29, 1977, the expression "in supersession of all previous notifications" all that was done was to repeal and replace the previous notifications by new notifications. By repealing and replacing the previous notifications by other notifications, the result was not to wipe out any liability accrued under the previous notifications. If this contention of the respondents were to be accepted, the result would be startling. It would mean, for example, that when a notification has been issued under Section 5(1) 16/24 ::: Downloaded on - 09/06/2013 19:27:32 ::: krs PIL148.2011 prescribing a rate of tax and that notification is later superseded by another notification further enhancing the rate of tax, all tax liability under the earlier notification is wiped out and no tax can be collected by the State Government in respect of any transactions effected during the period when the earlier notification was in force."
17. The above referred observations made by the Apex Court demonstrate that the contention, which was raised before the Apex Court was that the two notifications dated 29.12.1977 having been made in supersession of all previous notifications issued on the subject resulted in wiping out the tax liability, which had accrued under notification dated 23.5.1977. The Apex Court concluded the issue by recording the following finding :
"Thus, by using in the notifications dated December 29, 1977, the expression "in supersession of all previous notifications" all that was done was to repeal and replace the previous notifications by new notifications. By repealing and replacing the previous notifications by other notifications, the result was not to wipe out any liability accrued under the previous notifications."
18. While applying the principle enumerated in the above referred decision of the Apex Court to the facts of the present case, it is evident that the proceedings initiated on 10.9.2001 under Section 37 of the MRTP Act by the respondent no.3 NIT, which at the relevant time, was permitted to exercise jurisdiction as a Planning Authority by the State Government vide notification dated 6.10.1967, did not get either wiped out or rendered invalid merely because the State Government at the later stage issued another notification dated 27.2.2002 in supersession of notification dated 6.10.1967. The contentions canvassed by the learned Counsel for 17/24 ::: Downloaded on - 09/06/2013 19:27:32 ::: krs PIL148.2011 the petitioner in this regard, in our view, are misconceived and cannot be sustained in law.
19. Similarly, in order to consider the effect of supersession, regard must be had to the provisions of Section 7(c) of the Bombay General Clauses Act, 1904. Section 7(c) of the said Act stipulates that where this Act or any Bombay Act or Maharashtra Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. The observations of the Apex Court in para (16) of its judgment in Kazi Lhendup Dorji v. Central Bureau of Investigation and others (1994 Supp (2) SCC 116) are relevant in this regard, which read thus :
"Coming to the contention urged by Shri Jethmalani on merits it may be mentioned that Section 21 of the General Clauses Act does not confer a power to issue an order having retrospective operation. (See Strawboard Manufacturing Co. Ltd. v. Gutta Mill Workers' Union (SCR at pp447-48). Therefore, even if we proceed on the basis that Section 21 of the General Clauses Act is applicable to an order passed under Section 6 of the Act, an order revoking an order giving consent under Section 6 of the Act can have only prospective operation and 31 would not affect matters in which action has been initiated prior to the issuance of the order of revocation. The impugned notification dated 7.1.1987, has to be construed in this light. If thus construed, it would mean that investigation which was commenced by CBI prior to withdrawal of consent under the impugned notification dated 7.1.1987, had to be completed and it was not affected by the said withdrawal of consent. In other words, the CBI was competent to complete the investigation in the cases 18/24 ::: Downloaded on - 09/06/2013 19:27:32 ::: krs PIL148.2011 registered by it against respondent 4 and other persons and submit the report under Section 173 Cr.P.C. in the competent Court. On that view of the matter, it is not necessary to go into the question whether the provisions of Section 21 of the General Clauses Act can be invoked in relation to consent given under Section 6 of the Act."
20. While applying the law laid down by the Apex Court to the facts of this case, it is evident that though the State Government has issued notification dated 27.2.2002 in supersession of notification dated 6.10.1967, however, in view of provisions of Section 7(c) of the Bombay General Clauses Act, 1904, the notification dated 27.2.2002 can only be prospective in nature and would not affect the actions/proceedings initiated prior to issuance of notification dated 27.2.2002 particularly because the text of the said notification does not indicate that it operates retrospectively. In the circumstances, in our considered view, the proceedings initiated by the respondent no.3 for modification under Section 37 of the MRTP Act prior to notification dated 27.2.2002 issued by the State Government were saved and, therefore, were valid in law. Consequently, the impugned notification dated 30.1.2003 issued by the State Government can safely be held to be valid and sustainable in law. Hence, we answer the question in negative."
15. While applying the law laid down by the Apex Court and by the Division Bench of this Court to the facts of this case, we need to observe that the State Government issued Resolution/circular dated 19.4.2011 laying down the procedure/guidelines for appointment of octroi collection 19/24 ::: Downloaded on - 09/06/2013 19:27:32 ::: krs PIL148.2011 agent in supersession of the earlier decision/direction dated 3.3.1995, however, in view of the provisions of section 7(c) of the Bombay General Clauses Act, 1904, considering the nature of the Government Resolution dated 19.4.2011, it is clear that the same is only prospective in operation and could not affect the actions/proceedings initiated prior to the issuance of the said Government Resolution dated 19.4.2011 which were based on the decision dated 3.3.1995, particularly because the text of the Government Resolution dated 19.4.2011 does not indicate that the said Government Resolution is retrospective in operation. Since the Government Resolution is prospective in operation and the tender process having been commenced before the issuance of the Government Resolution dated 19.4.2011, in view of the law declared by the Division Bench of this Court as referred to hereinabove, the proceedings initiated by the respondent-Corporation in respect of the tender process were saved and, therefore, would be valid in law. In other words, we are of the view that the procedure followed and steps taken by the Corporation after issuance of notices inviting tender which were based on decision/direction dated 3.3.1995 being prior to the Government Resolution dated 19.4.2011 are saved and could not be rendered invalid on account of failure to follow the procedure stipulated in the 20/24 ::: Downloaded on - 09/06/2013 19:27:32 ::: krs PIL148.2011 Government Resolution dated 19.4.2011 which is subsequent and prospective in nature as well as as per the provisions of section 7(c) of the Bombay General Clauses Act, 1904. The contention canvassed by the learned counsel for the petitioner in this regard, therefore, suffers from lack of merit and deserves to be rejected.
16. In the instant case, as referred to hereinabove, the petitioner has pressed in action only prayer clause (f) of the PIL whereby a writ in the nature of mandamus was sought against the respondent no.1 State of Maharashtra to initiate disciplinary inquiry against the respondent nos.2 & 3 and other officers/members who have wilfully and deliberately refused to implement the procedure stipulated in the Government Resolution dated 19.4.2011. This Court having been held that the procedure undertaken by the Corporation pursuant to the notice inviting tender issued by the Corporation was based on the decision dated 3.3.1995 which was holding the field at the relevant time, having been saved in view of the law declared by the Division Bench of this Court while interpreting the provisions of section 7(c) of the Bombay General Clauses Act, 1904. Similarly, it would also not even be rendered invalid on account of failure to follow the procedure stipulated in the 21/24 ::: Downloaded on - 09/06/2013 19:27:32 ::: krs PIL148.2011 Government Resolution dated 19.4.2011 since the said Government Resolution was prospective in nature. It is in this legal and factual background the contention canvassed by the petitioner suffers from lack of merit and, therefore, the prayer made by the petitioner in prayer clause
(f) deserves to be rejected.
17. The decisions of this Court cited by the counsel for the petitioner in the case of M/s.Monarch Infrastructure Pvt. Ltd. v. Ulhas Nagar Municipal Corporation & Anr. and in the case of Subhash R. Acharya v.
State of Maharashtra & Ors. (supra) were rendered in totally different facts and circumstances and, therefore, those decisions, in our view, are of no help to the petitioner. Even otherwise, in the present case, this Court having been held that the procedure adopted by the Corporation pursuant to the issuance of notices inviting tender being valid in law, the decisions of this Court cited by the learned counsel for the petitioner in this factual background are not applicable to the present case.
18. It is no doubt true that the petitioner who had participated in the process of tender and if was aggrieved by the action of the respondents, ought to have approached the Court well in time. The petitioner has not 22/24 ::: Downloaded on - 09/06/2013 19:27:32 ::: krs PIL148.2011 given any explanation or justification for approaching the Court at such a belated stage i.e. almost six months after the contract was awarded in favour of the respondent no.4 by the Corporation. The PIL, therefore, is liable to be dismissed even on the ground of delay and laches.
19. The learned counsel for the respondent no.4 has submitted that the respondent no.4 has furnished Bank Guarantee and if the PIL fails, it was requested that the respondent no.4 be permitted to withdraw the Bank Guarantee.
20. For the reasons stated hereinabove, we record our answers to the questions framed in paragraph 11 of the judgement as under:-
Ans.to Q. (1) The tender process initiated by the respondent-
Corporation vide tender notice dated 30.3.2011 as well as dated 11.4.2011 having been saved in view of the law declared by the decisions of this Court as referred to hereinabove will not be rendered invalid in view of the Government Resolution dated 19.4.2011.23/24 ::: Downloaded on - 09/06/2013 19:27:32 :::
krs PIL148.2011
Ans. to Q (2) The Government Resolution dated 19.4.2011 is
prospective in nature.
Ans. to Q. (3) In view of the findings recorded by us as referred to
hereinabove, it is not necessary for us to go into the question as to whether a writ of mandamus can or cannot be issued in the absence of any demand or prayer made by the petitioner in that behalf.
21. For the reasons stated hereinabove, the PIL suffers from lack of merit and the same is dismissed. The respondent no.4 is permitted to withdraw the Bank Guarantee, if any, given by the respondent no.4.
(D. D. SINHA, J.) (SMT. V. K. TAHILRAMANI, J.) Suundaresan 24/24 ::: Downloaded on - 09/06/2013 19:27:32 :::