YASH ENGINEERS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. Heard learned Advocates for the appearing parties finally by consent.

(2.) The present petition has been filed for quashing and setting aside the order dtd. 29/6/2022 passed by respondent No.2 Collector, Jalgaon and to set aside the Resolution No.4, 5 and 14 dtd. 1/10/2020 passed in the General Body Meeting of respondent No.4 Nagar Panchayat and consequential intimation letter dtd. 13/10/2020, so also to set aside the work order and agreement dtd. 22/7/2021 issued to respondent No.5 by respondent No.4 and to direct the respondent authorities to grant extension of time of six months for getting the DPR plan sanctioned from the competent authority and for direction to respondent No.4 to release the amount of Rs.59,53,000.00 together with interest @18% per annum, as per the tender submitted by the petitioner to respondent No.4.

(3.) The petitioner has come with the case that respondent No.4 Nagar Panchayat had issued E-tender for preparation of the Detailed Project Report (DPR), Project Management Consultant (PMC) and for the appointment of the consultant for the various projects. The E-tender was specifically for the appointment of the consultant for preparation of DPR, technical sanction and administrative approval from the appropriate authority for the project of water supply scheme and PMC/associate for Augmentation Water Supply Scheme under Maharashtra Suvarn Jayanti Nagarotthan Mahabhiyan (MSJNM). Respondent No.4 by its letter dtd. 16/2/2018 communicated the petitioner to appear before it on 22/2/2018 for fixation of rates of the tender work. Accordingly, the petitioner gave the rates and submitted its offer price to the tune of 5% of the cost of project for preparation of DPR and PMC. After the negotiations, rate of the tender work was fixed to the tune of 3.5% of the total project cost and the breakup of the said amount was to the tune of 1.85% for preparation of DPR and for PMC work to the tune of 1.40%. The petitioner by letter dtd. 22/2/2018 communicated its consent for carrying out the work at the said rate. Accordingly, by Resolution dtd. 7/3/2018 passed by respondent No.4, work was allotted to the petitioner and communication to that effect was given to the petitioner on 27/4/2018. The petitioner was also directed to furnish the bank guarantee to the tune of 2% of the amount i.e. Rs.2,00,000.00. Accordingly, the bank guarantee was given. As per the terms of the contract, the petitioner was required to complete the said work of DPR between 24/5/2018 to 24/11/2018. Work order came to be issued in favour of the petitioner on 24/5/2018. The petitioner by letter dtd. 31/5/2018 requested respondent No.4 to provide necessary information to carry out the work, however, respondent No.4 by communication dtd. 31/7/2018 informed that though the resolution was saying that the work has been sanctioned to the tune of 3.25%, it cannot be granted in view of the Government policy and then the petitioner was asked to execute a fresh contract, whereby he would be entitled for consideration for the preparation of DPR and PMC to the tune of 3% of the project cost. The petitioner had almost done the survey by engaging man power and team of the technical expert as well as huge amount in carrying out that exercise has been invested and, therefore, was left with no option but to accept the communication dtd. 31/7/2018. Thereafter, petitioner by letter dtd. 23/8/2018 requested respondent No.4 that the resolution on water reservation should be approved, the water storage tank location information and resolution to that effect should also be approved. The petitioner had also requested respondent No.4 to supply the data in respect of population density of the city. Respondent No.4 passed the resolution on 11/9/2018 in respect of reservation of water for water supply scheme. The petitioner has prepared the detailed plan of reservation for the water supply scheme, however, the petitioner received show-cause notice dtd. 27/11/2018 stating that it has not completed DPR till 24/11/2018 and explanation was sought within 24 hours. The petitioner replied the same and pointed out that the basic data demanded by it has not been supplied by respondent No.4. As the data is not supplied, the petitioner was not in a position to complete the work and till that date, not a single pai was paid in respect of the said work to the petitioner. Petitioner had then requested that the time period to complete DPR be extended till 31/3/2019. The petitioner thereafter submitted DPR plans in three copies to respondent No.4 by its letter dtd. 1/1/2019 and requested respondent No.4 to submit it to the appropriate authority. Reminder was given by the petitioner in respect of the same to respondent No.4 on 15/1/2019. It was for respondent No.4 to place it before the appropriate authority for the approval. Respondent No.4 then made a communication to petitioner on 16/1/2019 regarding extension of time stating that the explanation by the petitioner to the show-cause notice dtd. 27/11/2018 is satisfactory. The petitioner vide communication letter dtd. 4/2/2019 requested respondent No.4 to disburse the amount of DPR as per the terms of the contract i.e. Rs.59,53,000.00. Reminder was given on 8/4/2019. The DPR could not be finalized due to code of conduct. The petitioner came to know that the Deputy Engineer, Maharashtra Jeevan Pradhikaran has raised certain queries about the DPR submitted by respondent No.4, which were then forwarded to respondent No.3. Respondent No.3 by letter dtd. 24/4/2019 asked respondent No.4 to remove the objections raised and file the DPR again. According to the petitioner all the queries/objections and lacunas were administrative in nature and it was for respondent No.4 to remove the same. However, respondent No.4 by letter dtd. 3/5/2019 requested to extend the validity of the bank guarantee till 4/5/2020, which was given by the petitioner. In spite of letters given by the petitioner, respondent No.4 has not released the amount, which was due to the petitioner. Respondent No.4 by letter dtd. 18/6/2019 communicated that until the DPR is sanctioned, the amount will not be released and the amount will be disbursed to the tune of 0.75% of the total cost of the project in view of Government Resolution dtd. 4/10/2018. Respondent No.4 removed the objections raised by respondent No.3 after about six months from the date of communication, which were in fact, purely administrative in nature. The petitioner, in view of communication by respondent No.4 on 26/12/2019 stating that the amount would be disbursed after the approval of DPR, requested respondent No.4 by letter dtd. 16/9/2020 to grant extension, however, to the surprise the petitioner received show-cause notice on 24/9/2020 stating that if the petitioner does not get the DPR approved from the competent authority, he will not be the competent person to carry out the said work. Explanation was called from him as to why the work order should not be cancelled. By a detailed report dtd. 1/10/2020, the petitioner informed that he was not responsible for the delay in getting the approval to the DPR from the competent authority. The subject was before the General Body Meeting of respondent No.4. The petitioner had requested respondent No.4 for the appointment and tendering of explanation personally, but it was informed by the staff of respondent No.4 that the General Body Meeting was arranged on online web portal and the link was not made available to the petitioner to take part. The General Body meeting passed resolution No.4, 5 and 14 rejecting the extension of time to the petitioner to sanction the DPR from the competent authority. It was then resolved that the work allotted to the petitioner should be cancelled and new agency should be appointed to do the work. The said decision was communicated to the petitioner by letter dtd. 13/10/2020. The petitioner challenged the said resolution before this Court by filing Writ Petition No.530 of 2021, however, that writ petition came to be withdrawn as alternate remedy was available to assail the said resolution. As an alternate remedy, the petitioner challenged the said resolutions before respondent No.2 Collector under Sec. 308 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965 (hereinafter referred to as the "Maharashtra Municipal Councils Act"). The petitioner wanted to show as to how the action of respondent No.4 was in gross violation of principles of natural justice and contrary to the record. Respondent No.2 heard the appeal and dismissed the same. Hence, the present petition.