Gujarat High Court
Shri Rajendrabhai Virjalalbhai ... vs Vadodara Municipal Corporation on 28 July, 2021
Author: Nirzar S. Desai
Bench: R.M.Chhaya, Nirzar S. Desai
C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9885 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 9885 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
=====================================================
1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
=====================================================
SHRI RAJENDRABHAI VIRJALALBHAI VIBHAKAR
Versus
VADODARA MUNICIPAL CORPORATION
=====================================================
Appearance:
Mr. Shalin Mehta, Senior Advocate assisted by Mr. ARJUN R
SHETH(7589) for the Petitioner(s) No. 1
MR NILESH A PANDYA(549) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3
RULE SERVED BY DS(65) for the Respondent(s) No. 2
=====================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
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C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 28/07/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE NIRZAR S. DESAI)
1. This Court vide order dated 11.07.2019 had issued Rule and made it returnable on 12.09.2019. Today, since both the parties agreed to go on with the matter, the matter is taken-up for final hearing.
2. Heard Mr. Shalin Mehta, learned Senior Advocate assisted by Mr. Arjun R. Sheth, learned advocate for the petitioner and Mr. Nilesh A. Pandya, learned advocate for the respondent No.1 - Vadodara Municipal Corporation (for short 'VMC').
3. Initially, when the petition was filed, the petitioner had prayed for the following relief:
"a. Your Lordships may be pleased to admit present petition.
b. Your Lordships may be pleased to issue appropriate writ of mandamus or any other appropriate writ, order or direction by quashing & setting aside the Resolution No.06/2019-20 dated 27/05/2019 qua debarring the Petitioner for 10 years from work of VMC;
c. Pending the admission and final hearing of the Page 2 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021 C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 present Petition, your Lordships may be pleased to by way of interim relief restrain the respondents and their men, agents, servants and subordinates from implementing the Resolution No.06/2019-20 dated 27/5/2019 qua debarring the Petitioner for 10 years from work of VMC;
d.Such other and further reliefs as may be deemed fit in view of the facts and circumstances of the case be granted."
4. Thereafter, this Court had heard the learned advocates for the parties for the purpose of interim relief and vide order dated 11.07.2019, refused to grant the interim relief and disposed of the Civil Application (for stay) No. 1 of 2019.
5. Thereafter, the petitioner had preferred Civil Application No. 3 of 2019 for amendment, wherein, vide order dated 10.12.2019, the Civil Application for amendment was allowed and the petitioner was permitted to amend the petition. Accordingly, the petitioner amended the petition by modifying the prayers and after amending the prayers, the relief claimed by the petitioner reads as under:
a. Your Lordships may be pleased to admit present petition. b. Your Lordships may be pleased to issue appropriate writ of mandamus or any other appropriate writ, order or direction by quashing & setting aside the Resolution No.06/2019-20 dated 27/05/2019.
bb. Your Lordships may be pleased to issue appropriate writ of mandamus or any other appropriate writ, order or direction Page 3 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021 C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 directing the Respondents to reinstate the Petitioner as operation and maintenance contractor of the Water Treatment Plant at Nimeta as per the terms and conditions of the tender contract (Annexure A) and work order dt. 16.03.2016 (Annexure D);
c. Pending the admission and final hearing of the present Petition, your Lordships may be pleased to by way of interim relief restrain the respondents and their men, agents, servants and subordinates from implementing the Resolution No.06/2019-20 dated 27/5/2019.
d. Such other and further reliefs as may be deemed fit in view of the facts and circumstances of the case be granted.
6. Now in view of the aforesaid backdrop, the facts leading to filing of the present petition are as under:
6.1. It is the case of the petitioner that the petitioner is a proprietor of Pooja Construction Company and is registered government approved contractor with Executive Engineer, R & B District Division, Rajkot. The company of the petitioner is an ISO 2900:2008 & OHSAS 18001:2007 Certified Company, and is engaged in the business as engineers and contractors and is also carrying the business of designing, construction and operation & maintenance of water supply projects, like water treatment plants, sewage treatment plants, various Regional Water supply schemes, piping and pumping machinery, etc. since last 25 yrs. and carrying 200 crores Ltrs. (2000 MLD) per day treatment of water for various public sector undertakings.Page 4 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021
C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 6.2. The respondent No.2 herein invited tender for operation and maintenance of 45 MLD, 50 MLD (OLD) and 50 MLD (NEW) water treatment plant at Nimeta on annual rate contract basis. The estimated cost for five years was Rs.6,82,92,156/-. The petitioner offered Rs. 5,49,75,185.58 for five years, which was accepted by Resolution No. 558 dated 17.02.2016. Thereafter, the respondent no. 3 issued the Letter of Intent on 08.03.2016 and directed the petitioner to deposit 5% security deposit of Rs.27,48,760/-.
6.3. Ultimately, after completing the formalities, the agreement was executed between the petitioner and the respondent and the work order was issued to the petitioner on 16.03.2016. It is noteworthy that earlier also the petitioner had worked with the present respondent and the petitioner was awarded a contract of similar nature for three years, which was completed on 18.10.2016.
6.4. The respondent no.2 vide letter dated 05.01.2019 informed the petitioner that raw water going out of Ajwa reservoir was found to be yellow and turbid. Since, the water treated by the petitioner is used as drinking water, the petitioner was asked to maintain Page 5 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021 C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 proper dosing of alum, so that the water becomes potable. Again vide letter dated 10.01.2019, the respondent, intimated the petitioner about non- functioning of certain units in the Water Treatment Plant (WTP). The petitioner vide letter dated 11.01.2019 replied the respondent that to remove yellowness and turbidity in the water, chlorination was required to be done and suggested the respondent to carry-out chlorination.
6.5. The issue of yellowness in water was causing anger in the general public in the East and South Zones of Vadodara Municipal Corporation (VMC) and so the petitioner was advised by the respondent to take care of operation and maintenance in proper manner. The petitioner replied to the same and stated that the petitioner was taking proper care in operation and maintenance of plant in proper manner.
6.6. In respect of the aforesaid issues, communications went-on between the parties and both started taking a stern stand in respect of the aforesaid dispute and tried to hold each other responsible for the problem caused.
6.7. The petitioner vide communication dated 18.04.2019 emphasized on the following aspects for the problem caused:
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a) At the time of taking over the plants, certain defects noted in the operation and maintenance of the plants were not yet resolved.
b) Plant No. 3 was working at overload
capacity.
c) Instructions issued to VMC officials
for treating yellow water were not followed as a result of which water could not be treated.
d) Despite clear instructions issued to VMC officials to carry out work of chlorination the same was avoided. Excess usage of PAC coagulant resulted in sludge formation. VMC was advised to reduce dosage of PAC, no heed was paid.
e) The plant required a shutdown for carrying out repairs. Accordingly permission was sought from VMC to shutdown the plant to carry out routine repairs and maintenance work.
Whereas, the respondent vide letter dated 20.04.2019, drew attention of the petitioner about floculator and re-circulation pump being non-operational since 03.04.2019. Ultimately, the petitioner sought permission to shutdown plant No. 3 for carrying out repair and maintenance work, which was accorded by the respondents to shutdown the plant on 30.04.2019. However, vide letter dated 27.04.2019, the respondents Page 7 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021 C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 also pointed out certain defects in maintenance and operation of Nimeta water treatment plant nos. 1, 2 and
3. 6.8. Ultimately, since the aforesaid exercise of passing the blame on each other did not yield any result, a show cause notice was issued by the respondent on 03.05.2019 to the petitioner, wherein, broadly two charges were levelled against the petitioner, i.e. (i) That the petitioner could not treat the yellowness and turbidity in raw water and thus could not ensure clean and safe drinking water for the residents of East and South Zones of Vadodara Municipal Corporation, and (ii) When plant no. 3 was shutdown on 23.03.2019, proper repairs were not carried out. That proper operation and maintenance work was not carried out even before 2016 as a result which the plant suffered from several defects.
6.9. The petitioner replied to the aforesaid show cause notice and mainly stated as under:
a) Unit no. 3 of the water treatment plant was being used at over capacity. Capacity was 50 million litres per day (MLD). However, the plant was running at over capacity, i.e., 60 - 65 MLD.
b) Control of how much water should be fed into each of the units of the plant (total 3 units) from the Ajwa reservoir was in the control of Vadodara Municipal Corporation (VMC).Page 8 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021
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c) Excessive use of PAC as a coagulant resulted in sludge formation and blocking of filters.
d) VMC officials were advised not to use PAC but no heed was paid.
e) Structural defects in the plant existing at the time of taking over were brought to the notice of VMC. In this context reference was made to petitioner's letter dated 18.09.2014 which highlighted the defects.
f) For treating yellowness and turbidity in water, VMC officials were asked to carry out chlorination to eliminate algae but chlorination was stopped for no good reasons.
6.10. Ultimately, after taking into consideration the reply filed by the petitioner, the respondent passed the impugned order / resolution No. 6/2019-20 dated 27.05.2019 and terminated the contract of the petitioner in respect of the operation and maintenance work of Nimeta plant, debarred the petitioner for a period of 10 years from the work of Vadodara Municipal Corporation (VMC) and ordered that operation and maintenance work of all the three plants of Nimeta would be done at the risk and cost of the petitioner.
7. Being aggrieved by and feeling dissatisfied with the aforesaid resolution / order dated 27.05.2019, the petitioner preferred the present petition challenging the aforesaid order / resolution dated 27.05.2019.
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8. As stated in the forgoing paragraph, initially, the petitioner had challenged only the action of the respondent -VMC of debarring the petitioner for a period of 10 years from the work of VMC and rest of the part of the aforesaid order / resolution was not subject matter of challenge before this Court.
9. However, after this Court refused to grant interim relief to the petitioner vide order dated 11.07.2019, the petitioner challenged the said order before the Hon'ble Apex Court by way of filing Special Leave to Appeal (C) No. 18005 of 2019. The Hon'ble Apex Court after hearing the parties, passed the following order on 08.08.2019:
"We have heard Mr. Mukul Rohatgi, learned senior counsel appearing on behalf of the petitioner as well as Mr. Tushar Mehta, learned Solicitor General representing first respondent and perused the impugned judgment and relevant material.
The petitioner was allotted tender for operation of water treatment plant at Nimeta on Annual Rate Contract basis which was accepted by respondent no. 1
- Vadodara Municipal Corporation. On account of certain alleged shortcomings in the execution of the work, respondent no. 1 passed the order on 27.05.2019 inter alia debarring/blacklisting the petitioner for a period of ten years.
Mr. Mukul Rohatgi, learned senior counsel appearing on behalf of the petitioner submitted that the petitioner has as many as 51 on going contracts and the debarment order dated 27.05.2019 passed by the first respondent- Vadodara Municipal Corporation has Page 10 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021 C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 prejudicially affected the petitioner's on going work in respect of 51 other contracts.
Mr. Tushar Mehta, learned Solicitor General appearing on behalf of the first respondent-corporation submitted that so far as first respondent is concerned, there are ten on going projects executed by the petitioner.
Having regard to the submissions made by the learned senior counsel appearing on behalf of the petitioner and taking into account the hardship that would be caused to the petitioner in respect of on going work with the various corporations including the first respondent- Vadodara Municipal Corporation, it is made clear that debarment/blacklisting would have only prospective effect and would not affect the on- going contracts given to the petitioner.
Since the matter is listed before the High Court on 12.09.2019, it is open to the petitioner to move an appropriate application for early hearing of the matter.3
The special leave petition is disposed of.
Pending application(s), if any, shall also stand disposed of."
10. In the meantime, in the main petition, the respondent herein had filed affidavit-in-reply dated 12.06.2019 and thereafter, the petitioner filed its rejoinder dated 14.06.2019. The petitioner also filed a further affidavit dated 28.06.2019.
11. Earlier, this Court had an occasion to consider only the aforesaid limited documents while refusing the grant of interim relief and thereafter as stated hereinabove, the petitioner approached the Hon'ble Supreme Court Page 11 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021 C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 challenging the aforesaid order dated 11.07.2019, and thereafter, the Hon'ble Supreme Court passed the order dated 08.08.2019.
12. Thereafter, the petitioner preferred Civil Application (for amendment) No. 3 of 2019 and amended the petition by challenging the order of termination as well and prayed for reinstating the petitioner as operation and maintenance contractor of the Water Treatment Plant (WTP) at Nimeta as per the work order dated 16.03.2016. Meaning thereby, initially, the petition was confined only to the challenge to debarment of the petitioner for a period of 10 years from the work of Vadodara Municipal Corporation (VMC), but after the amendment, the petitioner expanded the scope of his challenge and challenge the entire order dated 27.05.2019 and prayed for restoration of his contract.
13. The respondent- VMC filed its affidavit-in-reply and in the said reply, the respondent tried to justify their action of passing order / resolution dated 27.05.2019 on the ground of petitioner's failure to improve the quality of raw water for the residents of the City. According to the affidavit of the respondent, the Corporation had taken the physical and chemical examinations of the water treated by the petitioner and the same was found unfit on 01.02.2019 in respect of all the three plants. According to the affidavit, Page 12 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021 C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 though, time and again, notices were given to the petitioner, the petitioner could not improve the quality of water. In the reply filed by the respondent Corporation, the Corporation defended its action by saying that ample opportunities were given to the petitioner to improve the water treatment plants, but since the petitioner failed to do the same, the Corporation had to take harsh action of terminating the petitioner's contract and debarring him for a period of 10 years.
14. In its rejoinder, the petitioner tried to pass the blame on the Vadodara Municipal Corporation (VMC) by stating that the water treatment plant (new) was run with approximately 35% overload capacity since January, 2019 which is much higher than the designed capacity of 50 MLD. The petitioner also in its rejoinder stated that, raw water in the water treatment plant contained algae, which would clog the filters of the water treatment plants. All the three plants at Nimeta being conventional type of plants, they are not designed to treat algae laden raw water. In fact, to address the problem of algae, the respondent directed the petitioner to use overdose of PAC and because of overdose of liquid PAC (Poly Aluminum Chloride), turbidity was caused in the treated water.
15. Thereafter, in the further affidavit, the petitioner in Page 13 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021 C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 para-33 referred to one of the interviews of the Commissioner and stated that it was admitted by the Commissioner of the respondent Corporation that, the defects in the water treatment plants are structural in nature and the same were required to be resolved by the Corporation and it cannot be said to be a fault of the operation and maintenance. The duties of operation and maintenance is only to intimate the Corporation about the said defects and the Corporation was intimated about the same vide letters dated 27.10.2012, 02.11.2012 and 21.03.2016. So, in further affidavit, the petitioner mainly harped upon the instructions of respondent authorities to use overdose of PAC (Poly Aluminum Chloride) and over capacity utilization of Unit No.3 of water treatment plant for such defects. In the 2 nd further affidavit dated 20.02.2020 which is filed after the order passed by the Hon'ble Supreme Court dated 08.08.2019, the petitioner had tried to show that the water treatment plants at Nimeta were not capable of treating the raw water containing algae which produced yellow coloured raw water, and therefore, subsequently, the respondent Corporation put up for the tender of construction of another water treatment plant, but with the specific criteria to treat algae and yellow coloured water. According to the petitioner, as per the tender of the respondent, the plant is required to be designed and constructed in a different manner to treat the algae and / or Page 14 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021 C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 yellow coloured water and the existing plants do not contain any such specification.
16. Vide 3rd further affidavit dated 13.10.2020, the petitioner placed on record the fact that after the petitioner's contract was terminated, the respondent Corporation appointed one VA Tech Wabag for operation and maintenance of Nimeta water treatment plants. The said company is a multinational company having annual turnover around Rs.1,400 crores, however, evenafter appointing another company, the water supply from the WTP was once again yellow in colour because of algae in the water, and therefore, the respondent Corporation has also issued notice for closing of the aforesaid plant and has made arrangement for alternative source of water.
17. On 15.07.2021, before the hearing could commence, we received a Note dated 14.07.2021 from Mr. Arjun Sheth, learned advocate appearing on behalf of the petitioner, through e-filing, which reads as under:
"To The Registrar, Hon'ble Gujarat High Court Ahmedabad Dear Sir, Re: SCA no. 9885 of 2019, Rajendra Vibhakar v. Vadodara Municipal Corporation & Ors., before the Hon'ble Gujarat High Court at Ahmedabad Page 15 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021 C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 Sub: Note on behalf of the Petitioner
1. We are concerned for our client, the Petitioner in the captioned matter, upon whose instructions, we are filing the present note.
2.That the present note is being filed without prejudice to the rights and contentions of the Petitioner.
3. The Petitioner hereby states that the Petitioner shall not claim the following in relation to tender contract for operation and maintenance of 45 MLD, 50 MLD (old) and 50 mld (NEW) Water Treatment Plant at Nimeta, Vadodara for duration of 5 years from 19.03.2016 awarded to the Petitioner, vide resolution no. 558 dt. 17.02.2016 of the Respondent Corporation:
a. Reinstatement under the said contract; b. Claim of damages and / or any other claim (including claim towards deposit given by the Petitioner to the Respondent Corporation) against the Respondent Vadodara Municipal Corporation against the action of termination dt. 27.05.2019; and c. Take no action against the Respondent Corporation in relation to the action of termination dt. 27.05.2019 of the tender contract for operation and maintenance of 45 MLD, 50 MLD (old) and 50 MLD (NEW) Water Treatment Plant at Nimeta, Vadodara for duration of 5 years from 19.03.2016 awarded to the Petitioner, vide resolution no. 558 dt.
17.02.2016, of the Respondent Corporation.
4. In light of aforesaid statements, this Hon'ble Court be pleased to grant the following prayers:
a. Be pleased to set aside and quash the resolution dt. 27.05.2019 of the Respondent Corporation terminating the said tender contract;
b. Be pleased to set aside and quash the resolution dt. 27.05.2019 of the Respondent Corporation debarring the Petitioner for a period of 10 years; and c. Be pleased to pass above order such that the other contracts of the Petitioner with the Respondent Corporation are not affected in any manner, in furtherance of the order dt. 08.08.2019 passed by the Hon'ble Supreme Court in the case of Special Leave to Appeal no. 18055 of 2019 filed by the Petitioner.Page 16 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021
C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 Yours sincerely, Mr. Arjun R. Sheth Advocate & Solicitor for the Petitioner CC: Advocate of the Respondent Corporation, Mr. Nilesh Pandya".
18.1. Heard Mr. Shalin Mehta, learned Senior Advocate with Mr. Arjun Sheth, learned advocate for the petitioner, who at the outset pointed out from the Note that the petitioner is not willing to press the relief of reinstatement in respect of the contract awarded to the petitioner or to raise any claim in respect of damages or any other claim nor the petitioner wishes to take any action against the respondent Corporation in respect of the action of the termination of contract by the respondent Corporation vide resolution / order dated 27.05.2019. However, the petitioner would still pray for quashing and setting aside of the resolution / order dated 27.05.2019, whereby, the contract of the petitioner was terminated and as far as it debars the petitioner for a period of 10 years and that other contracts of the petitioner with the respondent Corporation may not be affected in any manner as directed by and in furtherance of the order dated 08.08.2019 passed by the Hon'ble Supreme Court in the case of Special Leave to Appeal (C) No. 18055 of 2019 filed by the petitioner.
18.2. With the aforesaid limited prayer, Mr. Shalin Mehta, learned Senior Advocate fairly submitted before us that, Page 17 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021 C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 basically, the petitioner is a businessman. According to Mr. Mehta, evenafter, the petitioner's contract was terminated by the respondent Corporation, newly appointed agency, who was entrusted with the same work i.e. VA Tech Wabag, also could not cure the problem of yellowish water and turbidity. That itself is suggests that, actually the fault lies with the structure and specification of the water treatment plant, which is not suitable to treat the algae laden water. On a question being asked to Mr. Mehta, learned Senior Advocate, that apart from this petition, whether the petitioner has preferred any other application under Arbitration and Conciliation Act, 1996 or any other Act or has approached the Civil Court for damages, etc. Mr. Mehta, learned Senior Advocate submitted that the petitioner is more interested in focusing on his business rather than going for lengthy litigations and that is why the petitioner has neither preferred any application under the Arbitration and Conciliation Act, 1996 nor any suit for damages, etc. before any Court of law. Mr. Mehta, learned Senior Advocate, further submitted that the order under challenge was passed on 27.05.2019 and today, after more than 2 years also, the order is in operation. Of course, the Hon'ble Supreme Court has granted some relief in favour of the petitioner by protecting the on-going contracts of the petitioner, but still, since vide order dated 08.08.2019, the Hon'ble Supreme Court clarified that the order dated 27.05.2019 would operate only in respect of prospective Page 18 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021 C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 contracts, the petitioner does not have any new contracts with the respondent Corporation. According to Mr. Mehta, the subsequent developments, which he has narrated, by way of rejoinder and three further affidavits clearly indicate that it's a clear case of victimization of the petitioner. Had the advise of the petitioner given from the year 2012 to 2016, by way of various letters for proper operation and maintenance of water treatment plants were acted upon, probably, this situation would not have arisen. Mr. Mehta, further submitted that the petitioner is a medium size company, whereas, another company i.e. VA Tech Wabag, is a multinational company having annul turnover of Rs.1400 crore per year also could not cure the problem, and if this aspect is seen alongwith the fact that ultimately the respondent Corporation had to publish a tender for construction of new water treatment plant with a different specification and structure, which is capable of treating the algae laden water, itself suggests that the plants for which the petitioner was having operation and maintenance contract, were not suitably designed to meet with the problem of algae laden water. In view of above, Mr. Mehta, submitted before us that, the record would beyond any doubt indicate that the petitioner could not have been blamed for yellow coloured water and turbidity in the water, and therefore, prayed that the petition may be allowed in respect of only limited prayers, which the petitioner has prayed for vide Note dated 14.07.2021.
Page 19 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 18.3. Mr. Mehta, learned Senior Advocate submitted that in view of the subsequent developments which are already on record and in view of the fact that the petitioner has sufficiently suffered on account of operation of the order dated 27.05.2019, it is a clear-cut case of victimization, and therefore, considering this peculiar facts, the impugned order / resolution dated 27.05.2019 is required to be quashed and set aside.
18.4. Mr. Mehta, learned Senior Advocate did not make any other or further submissions nor he relied upon any judgments in support of the case of the petitioner.
19. Mr. Nilesh Pandya, learned advocate appearing for the respondent- Vadodara Municipal Corporation (VMC), reiterated the stand of the respondent Corporation, which is on record by way of the affidavit-in-reply. Mr. Pandya, learned advocate, defended the resolution / order dated 27.05.2019 by submitting that the petitioner is taking an escape route, by passing the blame on the respondent Corporation. The petitioner was given contract for a period of three years for maintenance of water treatment plant, prior to the present contract which is terminated, but at that time, no such problem arose that itself shows that the say of the petitioner in respect of the fact that existing water treatment plants are not designed or are not capable of treating algae laden water are Page 20 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021 C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 baseless. Mr. Pandya, learned advocate disputed the fact that the petitioner was compelled to use the overdose of PAC or about over utilization of capacity of 50 MLD (New) water treatment plant (WTP). Mr. Pandya, learned advocate on the other hand submitted that all these contentions which are raised by Mr. Shalin Mehta, learned Senior Advocate, are disputed question of facts and this Court under Article 226 of the Constitution of India cannot go into the factual aspects, as all these are matter of evidence. Mr. Pandya, also submitted that the petitioner was accorded full opportunity to put- forward his version and the impugned order / resolution dated 27.05.2019 has been passed after taking into consideration various replies filed by the petitioner and after considering the stand taken by the petitioner, and therefore, he prayed for dismissal of the petition.
20. After having heard the learned advocates appearing for the respective parties, we are conscious of the fact about our jurisdiction to go into the disputed question of facts and about the limitations of our jurisdiction to examine the same, as the disputed question of facts are required to be proved by leading evidence. However, when we inquired from Mr. Mehta, learned Senior Advocate for the petitioner as well as Mr. Pandya, learned advocate for the respondent-Corporation about whether any of the parties have approached any other Forum agitating it's grievance by way of arbitration or by way of Page 21 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021 C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 filing a Civil Suit or whether either of the parties are willing to approach and avail any such remedy. Both the learned advocates appearing for the respective parties have submitted before us that none of the parties have preferred any other litigation except the present petition nor they intend to approach any other Forum in respect of the present dispute. In fact, at least, there is an agreement between them to the extent that the present petition is required to be decided by this Court only, on the basis of documents available on record, rather than asking them to approach a Forum where the disputed question of facts can be decided by leading the evidence. According to both the learned advocates appearing for the respective parties, considering the nature of dispute and the evidences which are required to be led and proved are all of hyper technical nature. As it not only involves knowledge and expertise in respect of the civil work but also involves a very complex mechanism of water treatment plants and usage of various chemicals in treatment of water, and therefore, both the learned advocates have shown faith that, let the issue be decided by this Court only in one way or another, on the basis of documents produced on record by the parties, as the same are not disputed.
21. Now in this backdrop of the submissions of the learned advocates appearing for the respective parties, we are also convinced about the fact that the nature of dispute Page 22 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021 C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 involves seriously disputed question of facts to go to the root cause as to who is at fault and whether the order /resolution dated 27.05.2019 is rightly passed or not or whether the say of the petitioner in respect of his defence is genuine or not, would certainly require the leading of evidence in respect of civil structure of the water treatment plants, it's mechanism and usage of various chemicals in treating the dirty water. Both the learned advocates are right in a way that it will be a complex exercise, involving long time and may also be expensive as well, and therefore, considering the fact that the petitioner is a businessman, who is deprived of any new contract since 08.08.2019, the date on which the Hon'ble Supreme Court passed the order in Special Leave to Appeal (C) No. 18055 of 2019 and also considering the fact that the respondent Corporation also if relegated to any alternative remedy, more particularly, after the Rule is issued in this matter on 11.07.2019 and there is no objection coming forward on record about maintainability of the petition, we deem it appropriate to decide this petition on the basis of documents available on record, rather than relegating the parties to any alternative remedy.
22. According to us, both the learned advocates appearing for the respective parties have rightly submitted before us that the determination of the core issue would require leading of evidence, which we cannot do in a petition Page 23 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021 C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 under Article 226 of the Constitution of India, but at the same time, after almost more than two years, after the petition is filed, if the parties are relegated to any alternative remedy, that also would affect both the parties adversely, in terms of time, that it may consume and in respect of burden of cost of litigation on public exchequer. We deem it appropriate to dispose of the present petition by giving suitable directions.
23. While doing so, we have considered the fact that the pandemic of Corona has paralyzed all the businesses to some extent. The economy has suffered the most, after the health of the citizen, and therefore, keeping this aspect in mind and also keeping the fact in mind that the petitioner has sufficiently been suffered on account of operation of the order dated 27.05.2019, if the period of debarring of the petitioner in respect of Vadodara Municipal Corporation (VMC) is curtailed from 27.05.2019 till the date of this order i.e. today, the interest of justice would be served, as the petitioner has shown its willingness that the petitioner is not inclined to get the reinstatement in respect of termination of contract, there is no question about the respondent Corporation would face any problem, if the period of debarment is curtailed by us as stated aforesaid, then the only question that would remain would be as to whether the operation of the order dated 27.05.2019 from the date of the order till today, would cast any stigma upon the petitioner or not and whether would it Page 24 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021 C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 come in the way of the petitioner, while applying for any other contracts in future or not. As far as that aspect is concerned, we have taken a note of the fact that, even after, the petitioner's contract was terminated, the respondent Corporation had awarded the same contract to a bigger and better equipped multinational company and even the said company also could not cure the problem of yellow coloured water and turbidity, and ultimately, the respondent Corporation had to publish a tender for construction of new water treatment plant, which was precisely the case of the petitioner right from the beginning, that the petitioner was given contract of operation and maintenance is not suitable to cure the algae laden water. These two facts according to us, would go in the favour of the present petitioner, even without leading the evidence, as the same has remained uncontroverted, as in the new tender, the structure and specification of the water treatment plants are sought to be changed, and therefore, we deem it appropriate to clarify that aspect keeping in mind the observations made by the Hon'ble Supreme Court in its order dated 08.08.2019 in Special Leave to Appeal (C) No. 18055 of 2019, which reads as under:
"........Having regard to the submissions made by the learned senior counsel appearing on behalf of the petitioner and taking into account the hardship that would be caused to the petitioner in respect of on going work with the various corporations including the first respondent- Vadodara Municipal Corporation, it is made clear that debarment/blacklisting would have only prospective effect and would not affect the on-going contracts given to the petitioner........."Page 25 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021
C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021
24. The aforesaid observation clearly indicates that even the Hon'ble Supreme Court protected the petitioner in respect of the on-going contracts and order dated 27.05.2019 was made operational and applicable only prospectively, and therefore, we deem it appropriate to clarify that, though, today, we are quashing the order of termination, the effect of the same would be from today only and the interregnum period from 27.05.2019 till today, the contract may be treated as terminated, but the same will not cast any stigma upon the petitioner. Hence, we pass the following order:
24.1. The resolution / order dated 27.05.2019 passed by the respondent no.1 herein- Vadodara Municipal Corporation (VMC) is hereby quashed and set aside, however, the interregnum period from 27.05.2019 till today shall be treated as the period of debarment of the petitioner from the respondent No. 1 - Vadodara Municipal Corporation, but with a clarification that such debarment shall not disqualify the present petitioner from applying any further contracts nor shall it cast any stigma upon the petitioner.
25. In view of aforesaid observations, the present petition succeeds partly. Rule is made absolute to the aforesaid extent. No order as to costs.Page 26 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021
C/SCA/9885/2019 JUDGMENT DATED: 28/07/2021 25.1. In view of the order passed in the main petition, Civil Applications, pending, if any, also stands disposed of.
(R.M.CHHAYA, J) (NIRZAR S. DESAI,J) Pradhyuman Page 27 of 27 Downloaded on : Fri Jul 30 22:04:55 IST 2021