Bombay High Court
M/S Balaji Enterprises Through Rohan ... vs The Union Of India And Others on 11 March, 2019
Author: Nitin W. Sambre
Bench: Prasanna B. Varale, Nitin W. Sambre
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3288 OF 2019
M/s Balaji Enterprises Petitioner
Versus
Union of India
& others Respondents
Ms. P.S. Talekar, advocate holding for Mr. S.B. Talekar, advocate for
petitioner.
Mr. S.B. Deshpande, Assistant Solicitor General for respondent no.
1.
CORAM : PRASANNA B. VARALE AND
NITIN W. SAMBRE, JJ.
DATE : 11th March, 2019.
P.C. :
The respondent-Cantonment Board issued e-tender dated 15.02.2019 for collection of entry tax from the commercial vehicles passing through the Cantonment Board area. Amongst other, the technical bid/pre-qualification conditions provides for experience certificate of similar nature of work viz. Collection of VET, Octroi, Escort, TOLL etc. in any Government departments for minimum one year during last three years. The tender work cost was Rs. 3,10,00,000/- and the period of tender was for one year.
2. In the pre-bid meeting, the aspirant candidates raised objection to the aforesaid condition and as such, the Chief Executive Officer of the Cantonment Board, in exercise of powers ::: Uploaded on - 13/03/2019 ::: Downloaded on - 14/03/2019 00:39:45 ::: {2} wp3288.19.odt under Sub-section (2) of Section 26 of the Cantonment Act, 2006 (hereinafter referred to as 'the Act' for the sake of brevity) exercised emergent powers thereby watering down the said condition. The corrigendum to that effect came to be issued under the signature and authority of the Chief Executive Officer which reads thus :
As per pre-bid meeting held on 02.03.2019 the following amendments are made to the technical bid pre-qualification conditions of the tender Id No. 2019_DGDE_44923_1 B(i) Experience certificate of similar nature of work viz. Collection of VET, Octroi, Escort, TOLL etc. in any Govt. departments for minimum one year during last three years.
Read As B(i) Experience certificate of similar nature of work viz. Collection of VET, Octroi, Escort, TOLL etc. in any Govt. department for minimum one year during last five years.
3. The submissions of the learned counsel for petitioner are, considering the provisions of sub-clause (4) of Section 12 of the Act, Ahmednagar Cantonment Board being the Class II board, the powers to administer the working vest with the elected seven members in addition to the seven members who are nominated under the said provisions. Further submissions are, there is no emergent situation spelt out from the factual matrix of the case in hand which warrants exercise of powers under Section 26(2) of the Act.
4. While resisting the claim, the learned Assistant ::: Uploaded on - 13/03/2019 ::: Downloaded on - 14/03/2019 00:39:45 ::: {3} wp3288.19.odt Solicitor General Mr. Deshpande would urge that, in the earlier round of litigation before this Court in same tender process, the collection of toll at the old rate inspite of tender period of the earlier contractor being over and the fact that the tender in question was into its midst, has prompted the Chief Executive Officer to take recourse to emergent powers. He would then urge that the decision of the Chief Executive Officer of the Board is approved by its President as contemplated under said provision and opposed for getting Expost facto sanction, the matter is being placed before the Board in its next meeting. A further submission is that the tender condition is universally amended.
5. After having heard the respective counsel for some time, since this Court is not satisfied with the justification for exercising emergent powers conferred under sub-Section (2) of Section 26 of the Act by the respondent, particularly, the basis formed for taking such decision, the learned Assistant Solicitor General, on instructions, submits that the respondent-Board, while processing the tender in question, shall not take into account the condition diluted as reflected in the impugned corrigendum to the tender conditions. He submits that the tender will be processed in accordance with tender condition reflected in e-Tender dated 15.02.2019.
6. He submits that before entering into any agreement, the decision taken by the Board will be placed before this Court in the matter of awarding of contract in question.
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7. Since the statement is made on instructions, same is accepted.
8. In view of above, since the interest of the petitioner is taken care of, as such, we adjourn this matter to 13th March, 2019.
NITIN W. SAMBRE PRASANNA B. VARALE
JUDGE JUDGE
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