Partly allowed

Shivani Estate Brokers and Developers v. the State of Maharashtra and Others

Bombay HC23 Oct 2013WP/4482/2013

Case brief

AI extract

What is this about?

Privileged Writ Petition. The petitioner, a sand estate broker, challenged an order disqualifying him for non-payment of balance tender amount in a Kadholi sand spot auction. The High Court quashed the order, holding that authorities must appreciate circumstances before punitive action and noted lack of hearing, directing the Assistant Collector to hear the petitioner.

What did the court decide?

Petition partly allowed; impugned order of 1.6.2013 quashed; petitioner directed to appear before Assistant Collector, Jalgaon, on 18.11.2013.

Shivani Estate Brokers and Developers Vs the State of… — Company and Corporate | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4482 of 2013 Shivaji Estate Brokers and Developers through its Proprietor Mukund Balvirsing Thakur.

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Petitioner

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Versus

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The State of Maharashtra and others.

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Respondents

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Mr. V.B. Patil, advocate for the Petitioner. Mr. S.K. Tambe, AGP for respondent Nos. 1 to 5. Mr. A.V. Rakh, h/f .Mr.G.V. Wani, Advocate for respondent No.6.

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CORAM : B.P. DHARMADHIKARI & RAVINDRA V. GHUGE, JJ. DATE : 23rd OCTOBER, 2013.

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PER COURT:

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1] Advocate Patil submits that earlier the petitioner was given a sand spot at village Chandsar and he could not operate it because of opposition of villagers. In the meanwhile, his other E tender for sand spot at village Kadholi, was accepted on 22.2.2013. He, therefore, requested authorities to appropriate amount deposited by him towards Chandsar Sand Spot and accordingly, he was given credit in relation to Kadholi sand spot. However, later on, villagers of village Kadholi also opposed excavation and hence he could not start any activity and also did not deposit the balance amount. A show

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cause notice was issued to him on 8.4.2013. He replied to it on 18.4.2013 and then, impugned order has been passed on 1.6.2013.

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2] Advocate Patil submits that without hearing the petitioner and without realizing all these difficulties, the impugned order has been mechanically passed.

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3] Learned AGP states that the authorities have acted with fairness in the matter. They appreciated difficulties faced by the petitioner in relation to Chandsar spot and hence appropriated that amount towards Kadholi sand spot. Sand spot at Kadholi could not have been operated unless and until balance payment was completed within 15 days. That payment was not done. Petitioner on his own approached villagers and on a specious ground that villagers are obstructing, he avoided to make balance payment. He further points out reply to show cause notice has been appropriately looked into by the office of the Collector while passing the impugned order.

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4] We have perused the terms and conditions. Term No. 12(III) enables the respondents to place petitioner in Black List and to disqualify him from future participation, if he does not deposit balance amount within 15 days. Similarly, condition No. 18(3) enables the respondents to forfeit 1/4^th amount in deposit, if balance 75 % amount is not deposited within 15 days. However, action in terms of said provisions cannot be taken merely because there is default. Circumstances in which default occurred, must also be appreciated and thereafter the power can be used. Here, petitioner had participated and succeeded in relation to Chandsar sand spot.

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There, he had bad experience and fortunately, because of sympathy shown by revenue authorities, ¼ th amount deposited by him for Chandsar sand block, could be appropriated towards the deposit in later E-tender, i.e. towards sand block at Kadholi. Petitioner complains that villagers at Kadholi, also obstructed excavation.

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5] Learned AGP submits that the Government does not have any document to show this position. He further submits that unless balance 75% amount was paid, the petitioner had no right to carry out any excavation and there was no occasion for villagers to obstruct.

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6] It is not the case of the respondents that the petitioner has carried out any excavation at Kadholi. The impugned order shows that on 22.2.2013, Kadholi sand spot was awarded to petitioner and the Gram Panchayat has issued a letter on 13.3.2013 raising objection to sand excavation on the ground of water scarcity.

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7] In this situation, there are several possibilities. The respondents could have appreciated concern of petitioner. They ought to have extended him an opportunity of hearing and then passed appropriate orders, as the situation does not show that merely on account of default, punitive action could have been taken.

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8] Hence, we quash and set aside the order dated 1.6.2013, direct petitioner to appear before the Assistant Collector, Jalgaon, on 18.11.2013 and to abide by his further instructions in the matter. Said authority shall hear petitioner in the light of record available and reply to show-cause-notice furnished by petitioner and take

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further appropriate decision in this connection within a period of four weeks thereafter.

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9] With these directions we partly allow and dispose of the writ petition. No costs.

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[RAVINDRA V. GHUGE] JUDGE

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[B.P. DHARMADHIKARI] JUDGE

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grt/

Shivani Estate Brokers and Developers v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Shivani Estate Brokers and Developers v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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