Case: Marathwada Rakh Upyogit Udyojak Sahakari Audhyogik Sansthan Vs. State of Maharashtra, Through Secretary of Energy Department & Others

Oral Judgment: (A.H. Joshi, J.)1. Rule is made returnable forthwith and heard both sides.2. Petitioners claim is as follows:-(a) Petitioner is a Co-operative Society.(b) It is a society formed by Small Scale Industries using fly ash as the raw material.(c) It had entered into a consortium arrangement with private enterprises and had offered bid for said consortium for purchase of fly ash from respondent No.2 at Parali Vaijnath.(d) In all 3 bidders had become successful in qualification for consideration of price bid.(e) The price bid of respondent No.9 was highest.(f) As per the provisions contained in the tender document, respondent No.2 called upon other 2 qualified participants having their bid low in value, including the petitioner, to express willingness, to match the price bid with that of the highest bidder i.e. the bid of the Respondent No.9.(g) Petitioner concurred to offer the same price.(h) The respondent No.2 prepared and submitted an office note and submitted it to higher authorities. In the said note, the respondent No.2 proposed to allot 400 MT per day volume of fly ash to respondent No.9 and 200 MT per day each to Adventure Processing Company and the petitioner.(i) The proposal of respondent No.2 was not conceded to by the Director (Operations) and rather he proposed to allot 750 MT per day fly ash to respondent No.9, out of estimated volume of 1000 MT per day.(j) The proposal made by Director Operations) to allot 750 MT per day fly ash to the respondent No.9 is approved by the Managing Director.(k) Said decision of the Managing Director, the respondent No.3 is challenged in this petition.3. The grounds of challenge as offered in the petition and focused during oral arguments advanced before this Court are summarized as follows:-(a) In fact, policy of the respondent Company is to divide the volume and allot fly ash to many persons.(b) That minimum quantity of fly ash has to be allotted to single bidder would be 250 MT per day.(c) A clause contained in Amendment No-4 to the Tender Notice (copy whereof is on the record at Page No.37), reads as follows:-Minimum quantity of fly ash will be allotted to single bidder 250 MT/day .........(d) The proposal of dividing the volume of fly ash furnished by the Chief Engineer is declined by the Director of Operation and concurred by Managing Director without recording reasons.(e) The said decision to allot 750 MT fly ash per day to respondent No.9 is propelled due to malafides.(f) In the petitioners rejoinder (copy whereof is at Page No.225) a statement is made, which suggests some factual malafides, which reads as follows:-I say and submit that, I learnt from reliable source that one Mr.Pandit Vibhute was Executive Engineer at MAHAGENCO at Parali Thermal Power Station who retired in July 2013 and thereafter he joined the services of the Respondent No.9. This itself is sufficient to read between the lines in respect of the favoritism, manipulation of record etc. in order to support respondent No.9.(g) Petitioners claim in this petition is not for a demand in that regards since petitioners bid is like any other bidder in open bidding and it claims equal sharing in open bidding. 20% quota earmarked for supply to Small Scale Industrial Units has to go to its members as a reserved or earmarked quota.(h) Petitioner wants sharing from unreserved volume i.e. portion being allotted to the respondent No.9.4. The petitioner has based its claim on the ground that the respondent No.3 ought not have overruled the proposal given by the Chief General Manager.5. The petition is opposed urging as follows:-(a) The office note given by the sub-ordinates is a proposal and it would at the most suggest the superiors.(b) The Authorities have to consider as to what is in the best interest of the Company. In that background, a decision to allot a particular volume when taken by the highest authority cannot be challenged except on the ground of violation of petitioners fundamental rights.(c) 20% of fly ash is earmarked for small scale industrial units and the members of petitioner can get required volume from un-allotted volume.(d) Petitioners demand does not appear to be made for its own industrial consumption.6. The matter pertains to allotment of fly ash, which is a by-product, generated in the process of generation of electricity by use of coal. Though fly ash is a by-product, at the same time, it is a raw material used in certain other industries and it is a commodity which is freely saleable and it is not a controlled commodity. Every citizen has right to participate in its sale when publicly offered.7. Upon scrutiny of petitioners contentions, it is seen that all that the petitioner claims as right is based on:-(a) Incomplete and erroneous reading of amendment No.4(b) Allegations of malafides are based on averments, which are tentative and not by way of specific facts. Those are based on inferences led by hallucinations than tangible evidence.(c) Personal demands and expectations.8. In the present case, the claim of the petitioner is not based on any enforceable legal right or any right accruing from any policy which binds the respondent Nos. 2 to 8, or from any commitment made by the respondents that particular volume of the said byproduct i.e. fly ash must be supplied to the petitioner.9. Petitioners claim is seen to be based on its expectations and desirability, which is sheerly one sided matter and there is no involvement of the respondents. The claim is thus based barely on desire and expectation than on right and reciprocal obligation.10. In so far as the allegations of malafides are concerned, the malafides as pleaded in the petition are bare and bald and are made without any factual foundation and in the nature of inference than any tangible material, and are barely apprehensions and suggestions.11. It is not shown that the petitioner is a genuine buyer as a manufacturer of some product and petitioners claim is based on genuine business needs as regards fly ash as an input. Petitioners right to trade has to be recognized, however his claim appears to be that of a trader as a middle man or as an exchanger than one who demands for own consumption.12. Therefore this Court is satisfied that petitioner has not made out any case for grant of indulgence.

Decision:
0[ds]8. In the present case, the claim of the petitioner is not based on any enforceable legal right or any right accruing from any policy which binds the respondent Nos. 2 to 8, or from any commitment made by the respondents that particular volume of the said byproduct i.e. fly ash must be supplied to the petitioner.9. Petitioners claim is seen to be based on its expectations and desirability, which is sheerly one sided matter and there is no involvement of the respondents. The claim is thus based barely on desire and expectation than on right and reciprocal obligation.10. In so far as the allegations of malafides are concerned, the malafides as pleaded in the petition are bare and bald and are made without any factual foundation and in the nature of inference than any tangible material, and are barely apprehensions and suggestions.11. It is not shown that theine buyer as a manufacturer of some product and petitioners claim is based on genuine business needs as regards fly ash as an input. Petitioners right to trade has to be recognized, however his claim appears to be that of a trader as a middle man or as an exchanger than one who demands for own consumption.12. Therefore this Court is satisfied that petitioner has not made out any case for grant of indulgence.