Disposed

F. a. Enterprises and Ors. v. Konkan Irrigation Development Corporation, Water Resources Dept and Ors.

Bombay HC9 Mar 2023WP/404/2013

Case brief

AI extract

What is this about?

The High Court disposed of a PIL against the Kondhane Irrigation Dam Project contract, finding nothing remained for adjudication due to previous Apex Court orders. Liberty was granted to CIDCO to execute the project with the petitioner. The State is directed to decide payment to the contractor utilizing funds deposited by CIDCO within three months, or via another party.

What did the court decide?

Liberty granted to CIDCO to execute the project; State directed to decide payment to petitioner within three months.

F. a. Enterprises and Ors. Vs Konkan… — Public Procurement and Tenders | Bombay HC (2023)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY Digitally signed by CIVIL APPELLATE JURISDICTION BASAVRAJ BASAVRAJ GURAPPA GURAPPA PATIL PATIL Date: INTERIM APPLICATION NO.16645 OF 2022 2023.03.10 20:30:06 IN +0530

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INTERIM APPLICATION NO.16645 OF 2022 IN PUBLIC INTEREST LITIGATION NO. 63 OF 2012

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F.A. Enterprises & Ors. ….. Petitioners Vs. Mayank Ramesh Gandhi & Ors. ….. Respondents

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WITH

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CIVIL APPLICATION NO.13 OF 2018 IN

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PUBLIC INTEREST LITIGATION NO. 63 OF 2012

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WITH

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INTERIM APPLICATION NO. 16645 OF 2022 IN

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PUBLIC INTEREST LITIGATION NO.63 OF 2012 WITH CIVIL APPLICATION NO. 980 OF 2016 IN WRIT PETITION NO.404 OF 2013

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Mr. Nissar F. Khatri, Partner, F.a. Enterprises ....APPLICANT V/S

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F.A. Enterprises

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....RESPONDENT

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WITH CIVIL APPLICATION (ST) NO. 2887 OF 2018 IN

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WRIT PETITION NO. 404 OF 2013

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Ajay Mathankar V/S

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F. A. Enterprises And Ors

....APPLICANT

....RESPONDENTS

WITH

CIVIL APPLICATION NO. 2972 OF 2013 IN

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WRIT PETITION NO. 404 OF 2013

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Basavraj

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F.A. Enterprises And Others ....APPLICANTS Vs. Mr D.D. Bhide,Executive Director ....RESPONDENT

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WITH PUBLIC INTEREST LITIGATION NO. 63 OF 2012

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Mayank Ramesh Gandhi And Ors ....PETITIONERS

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V/S

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F.A.Enterprises And Ors. ....RESPONDENTS

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WITH

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WRIT PETITION NO. 404 OF 2013

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F. A. Enterprises And Ors ....PETITIONERS

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V/S

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Konkan Irrigation Development Corporation, ....RESPONDENTS Water Resources Dept And Ors

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WITH

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CIVIL APPLICATION NO. 2880 OF 2016 WITH CIVIL APPLICATION (ST) NO.7381 OF 2019 IN WRIT PETITION NO.404 OF 2013

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F.A. Enterprises ....APPLICANT

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V/S

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Konkan Irrigation Development Corporation, ....RESPONDENTS Water Resources Dept And Ors

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WITH

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WRIT PETITION NO. 11974 OF 2013

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Kondane Dharan Parisar Vikas Manch And Ors.....PETITIONERS V/S State Of Maharashtra And Ors. ....RESPONDENTS

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Basavraj

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WITH

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CIVIL APPLICATION NO.2392 OF 2014 IN

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WRIT PETITION NO.11974 OF 2013

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Anjali Damania & Ors.

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….. Applicants

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Vs.

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Kondane Dharan Parisar Vikas Manch & Ors. ….. Respondents

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Mr. Mihir Desai, Senior Advocate with Ms. Sanskruti Yagnik for the Petitioner in PIL 63/2022

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Mr. Surel Shah I/b. Mr. Prasanna P. Patil for the Applicant in Interim Application No.16645/2022

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Mr. Rajiv Chavan, Senior Advocate a/w. Mr. P. P. Kakade, GP a/w. Mr. M. M. Pabale, AGP and Ms. Priyanka Chavan, AGP for the State

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Mr. Dinesh Khaire for Respondent Nos.6 and 7 in Interim Application No.16645 of 2022 and in PIL 63/2022

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Mr. G. S. Hegde, Senior Advocate I/b. Ms. P. M. Bhansali for CIDCO in PIL

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Ms. Shilpa Kapil with Mr. Chidanand Kapil for Respondent No.2 in PIL

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CORAM: S.V.GANGAPURWALA, ACJ & SANDEEP V. MARNE, J.

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DATED : MARCH 9, 2023

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P.C.

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The present PIL is filed against the contract being issued to

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Respondent No.1 concerning Kondhane Irrigation Dam Project on

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the Ulhas River in Raigad District of Maharashtra. The contention of

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Basavraj

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the Petitioner was that the tender was accepted with four fold increase in the cost. The challenge was on various grounds such as cartelisation, no permission concerning environmental regulations, corruption, clearance for development on forest land, projects being kept on shelf and so on.

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The Public Interest Litigation was filed in the first week of April 2012. It appears that immediately upon filing of the PIL, the contract with Respondent No.1 was cancelled by the Konkan Irrigation Development Corporation (for short the “ KIDC” ). It is not disputed that the Kondhane Irrigation Dam Project has now been handed over to the CIDCO.

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It appears that, the contract with Respondent No.1 was terminated. Respondent No.1 has filed Writ Petition bearing No.404 of 2013 challenging the cancellation of the contract. There were various orders passed from time to time by this Court. In the Writ Petition filed by the Contractor, the Petitioner also claimed payment of amount.

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It appears that the KIDC had filed affidavit in the Writ Petition No.404 of 2013 filed by the Contractor stating that the amount would be paid by them. Since the same amount was not paid, a Contempt Petition was filed. In the said Contempt Petition, show cause notice

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Basavraj

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was issued by this Court. The same was assailed by the KIDC and others before the apex court. The apex court passed the following order:

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“Application for intervention / impleadment is allowed. Leave granted.

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Heard learned counsel for the parties.

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It is agreed to that it would be appropriate that the matter of payment to the respondent with respect to work done is examined by the High Court while deciding the pending Public Interest Litigation (PIL) which includes inter alia project in question. There are certain orders which have been passed in the PIL, they will have some relevance with respect to the payment to be made, even there was a Government order directing that no payment shall be made. There had been a criminal case also in which certain incumbents were arrested. We do not want to comment on the merits of the case, agreement has expressed that question of payment has to be examined by the High Court afresh. The impugned orders passed by the High Court are set aside including in the contempt petition. The writ petition bearing No.404 of 2013, out of which this appeal arises, shall be heard alongwith pending PIL and decided simultaneously on merits alongwith that; and at the time of final decision of both matters the High Court shall take upon a call with respect to the payment, if any, be made to the respondent – F.A. Enterprises.

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We request the High Court that as the PIL is also pending since long, to decide the writ petition, PIL and any connected matter pending with respect to the PIL, together as expeditiously as possible preferably within a period of six

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months. We reiterate that we have not expressed any opinion on the merits of the case. Accordingly contempt proceedings shall stand dropped.

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With the aforesaid agreed order the appeal stands disposed of.”

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The Government has issued Government Resolution dated 18^th August 2017 handing over the project to the CIDCO and the CIDCO has deposited an amount of Rs.99.15 crores with the State Government. The State Government may ascertain the payment to be made to the contractor in Writ Petition No.404 of 2013.

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Mr. Desai, the learned Senior Advocate for the Petitioner in PIL submits that subsequently, during pendency of the PIL, criminal cases were registered against the contractor and the concerned officials. All the accused therein i.e. the Contractor and the other Officials have been discharged. The learned Senior Advocate further submits that the Chitale Committee was appointed and a report is submitted. The Committee had reported some irregularities. Same was placed in the Assembly and action taken report about concerned irregularities was undertaken and thereafter the criminal cases were filed against the contractor and the concerned officials. The Court has discharged the Contractor and the concerned Officials. It is submitted that while discharging, the Chitale Committee report

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Basavraj

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was also considered.

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In view of the above, nothing remains in the present PIL for adjudication. The PIL, as such, stands disposed of.

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In other Writ Petitions filed by the Petitioner regarding the contracts awarded by the KIDC, this Court, under order dated 8^th June 2021 in Writ Petition No.1755 of 2017 with connected Writ Petitions and Interim Applications, had passed an order disposing of the Applications recording the statement of the State Government and the KIDC that the project can be implemented without further legal hindrance. Mr.Shah, the learned Advocate for the Petitioner in Writ Petition No.404 of 2013, on instructions, submits that, even today also, the Petitioner is ready to execute the project at the same cost.

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Having regard to the stand of the KIDC and the Government and that today also the Petitioner is ready to do the work at the same cost, we grant liberty to the CIDCO to execute the instant project through the Petitioner or other interested party by following due process. As far as the payment is concerned, the CIDCO has deposited an amount of Rs.99.15 Crores with the State Government. The State Government shall take steps with regard to the payment, as may be permissible and which according to the State Government,

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Basavraj

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the Petitioner would be entitled to. The said decision shall be taken preferably within three months.

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