1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 531 OF 2010. Shri Saikrupa Transport Sahakari Sanstha Maryadit, Nagpur. ... PETITIONER VERSUS The Municipal Corporation of City of Nagpur and others. ... RESPONDENTS …. Shri Anjan De, Advocate for the petitioner. Shri S.K. Mishra, Advocate for the respondent No.1. Shri A.M. Ghare, Advocate for the respondent No.2. Smt. M.H. Deshmukh, Assistant Government Pleader for the respondent No.3. .... CORAM : SMT. VASANTI A. NAIK AND PRASANNA B. VARALE, JJ. DATED : 05TH JULY, 2011. ORAL ORDER : By this petition, the petition prays for a writ of certiorari for quashing and setting aside the resolution passed by the Standing Committee of the Municipal Corporation on 07.01.2010. The petitioner further seeks a declaration that the procedure adopted by the Municipal Corporation, Nagpur in granting permission to the respondent No.2 to run 300 buses received under JnNURM scheme is illegal and bad in law. A direction is sought to the Municipal Corporation, Nagpur to adopt an open, fair and 2 transparent procedure for grant of contract for running 300 buses received under the JnNURM scheme. Lastly, the petitioner has also sought a direction to the Corporation to consider the representation and offer of the petitioner for running 300 buses. Few facts giving rise to the writ petition are stated thus :- The petitioner claims to be a registered Co-operative Society of Drivers, Conductors and Mechanics. Under the JnNURM scheme, the Central Government decided to procure 15,000 buses for 65 mission cities. The City of Nagpur was also entitled to have 300 buses under the said scheme. It is the case of the petitioner that the petitioner was interested in operating those 300 buses received under the JnNURM scheme and hence it submitted a representation to the Chairman of the Standing Committee of the Corporation on 05.01.2010. According to the petitioner, the respondent No.1-Corporation was expected to follow a transparent policy and invite tenders for grant of the contract of operating the 300 buses. However, this was not done by the respondent No.1-Corporation and the petitioner became aware that on 07.01.2010 a meeting of the Standing Committee was called to consider the proposal of the respondent No.2 for running 300 buses received under the JnNURM scheme. According to the petitioner, the respondent No.2 was already operating 230 buses under the agreement dated 09.02.2007. It is averred in the petition that on 07.01.2010, the Standing Committee of the Corporation mechanically passed the resolution allowing the respondent 3 No.2 to ply 300 buses under the scheme in addition to the 230 buses which were operated by the respondent No.2. It is the case of the petitioner that the resolution dated 07.01.2010 is per se illegal and contrary to the provisions of law. The petitioner has, therefore, challenged the resolution passed by the Standing Committee of the Municipal Corporation on 07.01.2010 in regard to the grant of permission to the respondent No.2 to run the 300 buses received under the JnNURM scheme. According to the petitioner, the Corporation could not have bestowed any favour on any private parties and it was incumbent on the part of the Corporation to issue a tender in respect of the work allotted to the respondent No.2 under the JnNURM scheme. Shri Anjan De, the learned Counsel appearing on behalf of the petitioner submitted that the grant of contract of plying of 300 buses under the scheme could not have been made in favour of the respondent No.2 without issuance of a tender notice. The learned Counsel for the petitioner submitted that there should be transparency in the action of the Corporation and as huge amount of public money was involved in the contract, it was incumbent on the part of the Corporation to have floated the tender for plying of the 300 buses under the JnNURM scheme. Even otherwise, according to the learned Counsel for the petitioner, in view of the provisions of Section 64 of the City of Nagpur Corporation Act, 1948, it was necessary for the Corporation to have invited tenders for the contract in question as the contract money exceeded an amount of rupees fifty thousand. It is submitted on behalf of the petitioner that the entire action of the Corporation was stage managed and there was no transparency in the action 4 of the respondent No.1 in granting the contract of plying the buses to the respondent NO.2. The learned Counsel for the petitioner relied on the judgments in the cases of BECIL .v. Arraycom India Limited and others, reported in 2010(1) SCC, 139; Nagar Nigam, Meerut .v. Al Faheem Meat Exports (P) Ltd. and others, reported in 2006(13) SCC 382; and Union of India .v. M/s. Arora Associates and another, reported in 2003(4) All MR 901 to substantiate his submission that ordinarily all contracts by the government or by instrumentalities of the State should be granted by a public auction or by inviting tenders after advertising the same in well known news papers having wide circulation so that all eligible persons can compete in the auction and there is total transparency. It is then submitted on behalf of the petitioner that the entire exercise of the respondent No.1 in granting the contract to the respondent No.2 is against public interest as it is apparent from the agreement executed between the parties i.e. respondent No.1 and respondent No.2 on 03rd March, 2010 that by the said agreement, the royalty amount which was payable by the respondent No.2 to respondent No.1 in terms of the contract of the year 2007 was reduced. It is the case of the petitioner that the contract executed by the Corporation in favour of the respondent No.2 on 03rd March, 2010 is not a genuine contract as a back-dated agreement was fraudulently prepared by the Corporation after this Court had directed the parties to maintain status quo by the order dated 09.03.2010. The learned Counsel for the petitioner submitted that the date of the agreement i.e. 03rd March, 2010 is handwritten though the agreement is a typewritten document. The learned 5 Counsel for the petitioner submitted that the document also does not show the date on which the Commissioner signed the agreement as there is no date mentioned below his signature on the agreement dated 03rd March, 2010. It is the case of the petitioner that though by a previous communication the Corporation had asked the respondent No.2 to deposit a sum of Rs.18 crores towards 30 per cent of the cost of the 300 buses, for a long time, the respondent No.2 had not deposited a substantial amount and had deposited only a sum of rupees three crores and odd till 06th July, 2010. In the aforesaid set of facts and on the basis of the aforesaid submissions, the petitioner sought the relief's claimed. Shri S.K. Mishra, the learned Counsel appearing on behalf of the respondent No.1 submitted that a tender was indeed floated by the respondent No.1 on 26.02.2009. According to the learned Counsel for the respondent No.1, wide publicity was given to the `Expression of Interest' in the local news papers namely “Lokmat” and “The Hitavada” which are widely circulated in the Nagpur district. The learned Counsel for the respondent No.1 submitted that since nobody approached the Corporation in pursuance of the `Expression of Interest' and the respondent No.2 had raised an objection that the contract should have been given to the respondent No.1 only and to none else, in view of the terms and conditions of the contract entered between the parties in the year 2007, the Corporation had to take the decision of awarding the contract to the respondent No.2. It is submitted on behalf of the Corporation that considering the nature of the contract, in the interest of the public at large, the action to award the 6 contract to the respondent No.2 was taken in the aforesaid set of facts. It is submitted on behalf of the respondent No.1 that the submission of the petitioner that the respondent No.2 had deposited only a sum of little more than rupees three crores though the Corporation had asked for a sum of Rs.18 crores, is incorrect as the Corporation has supplied 240 buses to the respondent No.2 under the JnNURM scheme and 30 per cent of the cost of those 240 buses, amounting to Rs.14.5 crores has been deposited by the respondent No.2. The learned Counsel for the Corporation submitted that this Court may not show any indulgence in the matter as the petitioner had itself written to the Chairman of the Standing Committee on 05th March, 2010 for grant of contract in favour of the petitioner though it is the case of the petitioner that the contract ought not have been awarded to any party in the absence of issuance of a tender notice. The learned Counsel for the respondent No.1 sought for the dismissal of the writ petition. Shri A.M. Ghare, the learned Counsel appearing on behalf of the respondent No.2 adopted the submissions made on behalf of the Corporation and added that by a communication dated 26.03.2009, the respondent No.2 had objected to the offer made by the Corporation by the `Expression of Interest' as according to the respondent No.2 in view of Clause 16 of the agreement of the year 2007, only the respondent No.2 was entitled to operate the buses in the city of Nagpur. 7 Smt. M.H. Deshmukh, the learned AGP appearing on behalf of the respondent No.3 had nothing to say in the matter as no relief is sought by the petitioner against the respondent No.3. The main challenge of the petitioner is to the grant of contract of plying of the 300 buses under the JnNURM scheme to the respondent No.2 though a tender was not floated by the Corporation inviting for bids from the interested parties. The submission made on behalf of the petitioner that the contract could not have been awarded in favour of the respondent No.2 without floating a tender loses its force for the simple reason that though it is the case of the petitioner that the Corporation had not floated a tender notice calling for the bids for the contract in question, the petitioner had made a representation to the Chairman of the Standing Committee of the Corporation on 05.01.2010 seeking the contract in its favour. In fact, it was stated in the communication/representation issued to the respondent No.1 that the petitioner was ready to pay an additional amount of five per cent of the rates quoted by the other operators. If the petitioner believed that there was no tender notice issued by the respondent No.1-Corporation and the action of the respondent No.1-Corporation in not floating the tender was bad, the petitioner should not have approached the Corporation by the representation dated 05.01.2010 asking for the contract in its favour. Since the petitioner had directly approached the Corporation in the absence of tender notice, the submission made on behalf of the petitioner that the Corporation could not have granted the contract in favour of the respondent No.2 in the absence of any tender loses its force. 8 Be that as it may, we find that the respondent No.1-Corporation had indeed floated a tender on 26.02.2009. Though this document/ advertisement shows that the `Expression of Interest' was invited from the parties for supplying and operating the buses, it was made clear in the said tender notice that the Corporation would make part of the cost of the buses available for this project from JnNURM and the balance amount shall have to be invested by the successful bidder. The operators were made aware that they were to receive a part of the funds from JnNURM and hence it cannot be said that because the tender notice was for supplying and operating the buses and was not only for operating the same, no bids were submitted by the interested parties. In any case, it is not the case of the petitioner that the petitioner was aware of the tender notice dated 26.02.2009 and the petitioner had not offered its bid in pursuance of the tender notice dated 26.02.2009 because it related to supply and operation of the buses and it did not relate only to the operation thereof. It is not in dispute that there was no response to the tender notice dated 26.02.2009 and not a single bid was offered by anyone. After the tender notice was issued on 26.02.2009, in fact, an objection was raised by the respondent No.2 against the grant or offer to any other agent or operator as the contract between the respondent No.1-Corporation and the respondent No.2 extended for a period of ten years from 2007. It is rightly submitted on behalf of the Corporation that it is in this background that the respondent No.1-Corporation considered the agreement between the respondent No.1 9 and the respondent No.2, dated 09th February, 2007 and specifically clauses 2.4 and 16 thereof to consider the case of the respondent No.2 for grant of the contract to ply the 300 buses under the JnNURM scheme. In the facts and circumstances of the case and on reading of the clauses of the agreement dated 09th February, 2007, we see nothing wrong in the action of the Corporation in granting the contract in favour of the respondent No.2 in pursuance of the resolution passed by the Standing Committee of the Municipal Corporation on 07.01.2010. It is rightly brought to the notice of this Court that the respondent No.2 has paid an amount of Rs.14.5 crores for the 240 buses provided to the respondent No.2 by the respondent No.1- Corporation under the JnNURM scheme. The reliance placed by the learned Counsel for the petitioner on the judgments in the cases of BECIL .v. Arraycom India Limited and others; Nagar Nigam, Meerut .v. Al Faheem Meat Exports (P) Ltd. and others; and Union of India .v. M/s. Arora Associates and another (cited supra) and also on the provisions of Section 64 of the City of Nagpur Corporation Act, 1948, is not well founded, as it is apparent from the facts of the case that the respondent No.1-Corporation had indeed issued a tender notice on 26.02.2009 calling for bids from the interested parties. The submission made on behalf of the petitioner that the agreement executed between the respondent No.1 and the respondent No.2 on 03rd March, 2010 is not a genuine agreement and is a fabricated document, cannot be considered while exercising the jurisdiction under Article 226 of the Constitution of India. This issue would require the 10 tendering of evidence and it may not be possible for this Court in exercise of the extraordinary writ jurisdiction to hold that a particular document is a fabricated or fraudulent one. Apart from this position, the submission made on behalf of the petitioner that the agreement needs to be declared as a fabricated one only because the date on the agreement is handwritten and there is no date mentioned below the signature of the Commissioner, is liable to be rejected. It would also not be possible for this Court to consider the submission made on behalf of the petitioner that the terms of the agreement dated 03rd March, 2010 are not in public interest and are incorporated with a view to favour the respondent No.2 as this is not a public interest litigation and the petitioner has approached this Court for a direction to the respondent No.1 to grant the contract in favour of the petitioner. The submission made on behalf of the petitioner that clause 16 of the agreement entered between the respondent No.1 and the respondent No.2 on 09.02.2007 is violative of the provisions of Section 3 of the Competitions Act and, therefore, the benefit of clause 16 could not have been granted to the respondent No.2 is also liable to be rejected as the agreement between the respondent No.1 and the respondent No.2 was executed as early as on 09th February, 2007 and the same is not challenged by this petition. Apart from the fact that there is no merit in writ petition, it also appears that the petition has been filed by the Society of drivers, mechanics and conductors at the instance of a party who desires that the contract should not be awarded to the respondent No.2. 11 In the facts and circumstance of the case and for the reasons aforesaid, we find no merit in the writ petition and the same is dismissed with no order as to costs. JUDGE JUDGE *rrg.