Disposed

Dilip Ramchandra Shinde v. State of Maharashtra, through Principal Secretary, Urban Development Dept and Ors.

Bombay HC10 Oct 2014PIL/103/2013

Case brief

AI extract

What is this about?

The Court disposed of a PIL challenging the initiation of tenders without e-tendering. It held that though no power exists for post facto relaxation, considering factors like imminent fund expiry and lack of actual loss, no interference was warranted.

What did the court decide?

The Public Interest Litigation was disposed of without interference; the challenge to the e-tendering exemption was dismissed.

Dilip Ramchandra Shinde Vs State of… — Public Procurement and Tenders | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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PUBLIC INTEREST LITIGATION NO.103 OF 2013

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Dilip Ramchandra Shinde. ...Petitioner. vs. 1.State of Maharashtra & Ors. ...Respondents.

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Mr.N.R.Bubna, for the Petitioner.

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Mr.S.N.Patil, AGP for Respondent Nos.1 and 2.

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Mr.A.A.Kumbhakoni, Senior Advocate i/b. Mr.Abhijit P.Kulkarni, for Respondent No.3.

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Mr.S.R.Nargolkar, for Respondent No.4.

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----- CORAM : A.S.OKA & G.S.KULKARNI, JJ. DATED : 10^th OCTOBER, 2014. ----

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P.C. :

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By this Public Interest Litigation, the petitioner has taken an exception to the decision of the Baramati Municipal Council of inviting tenders without taking recourse to the process of E-Tendering and of awarding contract to the fifth respondent. On 9^th April,2013 an advertisement was published at the instance of the said Municipal Council in daily newspaper 'Loksatta' inviting tenders for carrying out work of underground drainage system. The objection of the petitioner to the said process is on the ground of the policy decision of the State Government. The policy decision of the State

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Government is reflected from the Government Resolution dated 6^th

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August,2010. The Government Resolution records that in case of tenders involving an amount of Rs.2 crores and more, with effect from 1^st October,2010 recourse should be taken to E-tendering. In relation to the contracts of Rs.50 lakhs and more, with effect from 1^st December, 2010 the recourse should be taken to E-tendering. A reliance is also placed on a letter dated 6^th April,2013 issued by the Commissioner cum Regional Director of Municipal Administration, Amaravati, by which the instructions were issued that in case of the contracts involving an amount of Rs.10 lakhs or more, with effect from 1^st February,2013 recourse should be taken by all the Municipal Councils to E-tendering.

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The learned Counsel appearing for the petitioner pointed out that an objection was raised by the Petitioner to the process adopted by the Municipal Council. He pointed out that an objection was raised even by an elected Councillor. He has invited our attention to the communication dated 24^th April,2013 addressed by the petitioner to the District Collector. He pointed out that as of 6^th April,2013 a direction was issued by the Commissioner cum Regional Director of Municipal Administration to the Municipal Council to adopt process of E-tendering in case of contracts. He pointed out that though the then Chief Officer was aware of the requirement of E-tendering prescribed by the State Government, never an attempt was made by the Municipal Council to apply for digital signature key. He pointed out that by a letter dated 25^th

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April,2014 which was submitted by the Chief Officer to the State Government through the Collector after publication of the tender notice pointing out that digital signature key has not been received from the National Informatics Centre. He urged that there was sufficient time available to the Municipal Council and the Chief Officer to obtain digital signature key. His submission is that in any case, an application for dispensing with the E-tendering process ought to have been made prior to the date of publication of notice and only after receiving permission that the said step ought to have been taken.

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He urged that there is nothing placed on record to show that the funds allotted by the Government were to be utilized immediately. He invited our attention to the averments made in the petition. He urged that the entire object was to award the tender to the respondent No.5 who was allegedly found to be only eligible bidder. He, therefore, urged that there is complete illegality committed by the Municipal Council and the Chief Officer. On earlier occasion, he pointed out that the letter addressed by the State Government to the Collector dated 15^th May,2013 is issued on the basis of the letter of the Collector dated 16^th April,2013. In fact no such letter was sent on 16^th April,2013 by the Collector.

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We have heard the learned Senior Counsel appearing for the Municipal Council and the learned Counsel for the respondent No.4. The learned Counsel for Municipal Council has placed on record photo copies of

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the relevant documents. Even, the State Government has produced for perusal of the Court the entire file in relation to grant of sanction. He urged that none of the Municipal Councils in the State were provided with digital key when the impugned tender notice was published. He submitted that by letter dated 20^th March,2013, the Chief Officer was called upon to remain present on 21^st March,2013 at Pune to undergo training for implementation of E-tendering process.

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We have given careful consideration to the submissions. We have perused the reply filed by the then Chief Officer as well as the original file produced by the State Government.

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In paragraph 6 of the reply of the then Chief Officer, it is submitted that on 28^th March,2013 the Urban Development Department of the State Government allocated funds to various Municipal Councils for infrastructure work. Funds of Rs.79.29 crores were made available which were to be utilised for drainage system etc. He has stated that the funds were received on the last date of the financial year 2012-13 and the time for utilization thereof was very short. He has annexed to the reply, an order dated 28^th March,2013. The said order records that the Collector shall ensure that the work for the amount so allocated should be completed within the stipulated time.

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An application was made by the Municipal Council on 25^th

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April,2013 for grant of digital signature key to the eight officers of Municipal Council. On the same day, an application was made by the Municipal Council to the State Government through the Collector for grant of permission to dispense with the E-tendering process in relation to four tenders. We have perused both the letters. In the letter dated 25^th April,2013 addressed to the State Government, it is stated that for various works grant was sanctioned by the State Government under its special scheme. The grant amount was required to be spent before the end of financial year. In the said letter, it is stated that unless the work of underground drainage is completed, the work of roads cannot be started. The letter records that the digital signature key has not been received from the National Informatics Centre. The Collector by his letter dated 26^th April,2013 vide outward No.1328/13 submitted a report to the State Government on the proposal submitted of the Municipal Council. The communication dated 15^th May,2013 issued by the State Government to the Collector granting exemption from e-tendering refers to the letter of the Collector dated 16^th April,2013 bearing outward No.1328/13.

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We have perused the original file produced by the learned AGP wherein there is a detailed note put up before the Government by the Section Officer of the Urban Development Department. It records that unless the work of underground drainage is completed, the work of road cannot be started. It appears that the file was sent to the General Administration Department. There

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is a noting made on 13^th May,2013 by the concerned officer of the State after having a meeting with the Chief Officer. It is recorded that every officer nominated by the Municipal Council has received DCS Dongal but same has not been activated. It appears that the file was also sent to the Information and Technology Department apart from the General Administration Department before approval was granted. Thereafter, a letter dated 15^th May,2013 was issued granting post facto permission to dispense with the E-tendering process in respect of the four tenders.

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There is a merit in the submission of the learned Counsel for the petitioner that the application for grant of digital signature key could have been made much prior to 25^th April,2013. There is also a merit in the submission that before publishing the tender notice, the Municipal Council ought to have applied to the State Government for grant of permission to dispense with the process of E-tendering.

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However, after having perused the file submitted by the State Government, we find that all the relevant facts were placed before the Government. The file travelled from the Urban Development Department to General Administration Department and thereafter, to the Department of Information and Technology. The decision of the State Government noted in the file is that though relaxation deserves to be granted in case of four tenders, but the Municipal Council should be asked to adopt E-tendering in case of all

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tenders after 15^th May,2013. The file also notes that though DCS dongals were given to the Municipal Officers, the same were not activated.

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In the petition, no case is made out that by not adopting the process of E-tendering, any loss was caused to the public exchequer and in particular to the Municipal Council except a bald allegation that this was done to favour the respondent No.5. No such case is made out regarding the loss to the exchequer. The petitioner himself records that four different companies including the respondent no.5 offered bids. The tender notice was published in the leading newspaper. It is not the case that only few bidders submitted bids and the other contractors were prevented from submitting their bids. None of the contractors have challenged the tender process. We must also note the statement made in the affidavit of the Chief Officer and in particular paragraph 3 of affidavit dated 21^st July,2014 that 98% work on the basis of the contract has already been completed and the drainage has become functional in the benefit of the citizens of Baramati.

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While granting the sanction for dispensing with the E-tendering process in relation to four tender notices, it appears that three departments of the State Government have taken into consideration all the relevant factors. The decision of the State Government cannot be said to be arbitrary.

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We must, however, make it clear that there is no Government

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Decision or Government Resolution which is pointed out to us which permits the State Government to grant post facto relaxation by permitting a Municipal Council to not to adopt E-tendering process.

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Coming back to the facts of the case, as stated earlier, there is no material placed on record to show that by reason of not adopting E-tender process, any loss has been caused to the Municipal Council or to the public exchequer. Moreover, the work under the contract has been alomost completed as is clear from the affidavit of the Chief Officer.

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Though we are not holding that the State Government possesses power to dispense with the requirement of E-tendering, considering the several factors which are discussed above, we are of the view that this is not a case where interference should be made in a Public Interest Litigation by exercising the powers under the Constitution of India.

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We accordingly dispose of the Public Interest Litigation.

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(G.S.KULKARNI, J.) (A.S.OKA, J.)

Dilip Ramchandra Shinde v. State of Maharashtra, through Principal Secretary, Urban Development Dept and Ors.

Case brief

What is this about?

What did the court decide?

Dilip Ramchandra Shinde v. State of Maharashtra, through Principal Secretary, Urban Development Dept and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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