B G AHUJA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard submissions of the 2nd petitioner appearing-in-person. On the earlier date, we have also heard the submissions of the learned AGP appearing for the respondent Nos. 1 to 4 as well as learned counsel appearing for the 5th respondent-The Maharashtra Krishna Valley Development Corporation. With a view to appreciate the submissions made across the bar, it will be necessary to make a brief reference to the facts of the case. It is alleged that the 1st petitioner is a Partnership firm registered under the Indian Partnership Act, 1932 and the 2nd petitioner appearing in-person is the Managing Partner of the 1st petitioner. Reliance is placed on earlier Writ Petition No. 462 of 1983 filed by the petitioners. The case of the petitioners is that in August, 1982, tenders for construction of lining work in Kilometers 73 to 80 of Kukadi Left Bank Canal, Sirur, District-Pune were invited. The case of the petitioners is that they were eligible to compete and submit a tender. It appears that the petitioners submitted a tender. The tenders were opened and scrutinized on 2nd November, 1982. It is the case of the petitioners that the Superintending Engineer, Kukadi Project Circle, Pune opened all the tenders and informed the petitioners orally and declared in presence of others that the tender of the petitioners was the lowest amongst all the tenders received. However, the tender submitted by the petitioners was not accepted.

(2.) Being aggrieved by the said action, the petitioners filed the said earlier petition. In the said petition, this Court by Judgment and Order dated 29th October, 1990 held that the petitioners were wrongly deprived of the award of the contract. While disposing of this writ petition, this Court directed the petitioners to put forward their claim for grant of compensation to the Department and the Secretary of the concerned Department was directed to examine the claim and decide the same. This Court directed the State Government to pay costs of Rs. 5,000/- to the petitioners. At this stage, we may also note that the State Government filed a Review petition which was disposed of by the same Division Bench of this Court by an order dated 15th April, 1991 clarifying that the Secretary of the Irrigation Department will be entitled to consider all relevant material including what is set out in the Review petition and will decide whether any compensation is required to be paid to the petitioners or not. Thereafter, the order dated 18th July. 1991 which is impugned in the petition was passed by the Secretary to the Government of Maharashtra, Irrigation Department holding that the petitioners are not entitled to compensation. The petitioners being aggrieved by this order have filed the present petition. The petitioners have made a reference to the Contempt petition filed in this Court which was disposed of by observing that the appropriate remedy for the petitioners would be to file a writ petition. In the petition, the substantive prayer is that respondents be directed to pay compensation to the petitioners of Rs. 8,80,150/- being 15% of the amount of con-tract with interest thereon @ 161/22% p.a. from 31st July, 1991. There is a reply filed by the State Government as well as added respondents raising various contentions.

(3.) The 2nd petitioner appearing-in-person submitted that there is a categorical finding recorded by the Division Bench while disposing of the earlier writ petition holding that the State Government had wrongfully denied the contract to the petitioners though the 1st petitioner was eligible to submit the tender. He invited our attention to the judgment and order passed by the Division Bench disposing of the earlier writ petition and submitted that the only issue is to be decided by the Secretary was whether the petitioners were entitled to receive compensation. His submission is that the Secretary to the State Government has recorded the findings on factual aspects which are completely erroneous and directly contrary to the findings recorded by the Division Bench of this Court while deciding the earlier Writ Petition. He submitted that the Secretary could not have over ruled the Division Bench by holding that the petitioners were not eligible for submitting the tender. He submitted that the order of the Secretary is illegal. He placed reliance on various decisions including the decision of the Apex Court in the case of M/s. A.T. Brij Paul Singh and Bros. v. State of Gujarat, 1984 AIR(SC) 1703. He submitted that the Apex Court has adopted the formula, on the basis of which, the prayer in this petition is based. He submitted that the Apex Court held that 15% of the value of the works contract should be measured as damages.