Sunday, April 2, 2023

Bombay High Court disposes PIL filed for quashing tender notice for outsourcing labour

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The Bombay High Court disposed of a Public Interest Litigation (PIL) filed for  quashing a tender notice invited by the Pune Municipal Corporation (PMC) for the purpose of outsourcing labour for cleaning/sweeping of roads as well as contracts, if any, awarded in pursuance of such tender.

The petitioner is a corporator of the PMC. Presently, however, the Municipal Commissioner is the Administrator of PMC since the term of the General Body of PMC has expired. According to the petitioner, while issuing the impugned tender notice, Government Resolution (GR) dated 26th November 2018 in respect of ‘performance guarantee’ has been thrown to the winds. Instead of insisting for a performance guarantee (10% of the bid) after the stage of identification of the L-1 bidder has been reached, the PMC has been insisting for such performance guarantee to be submitted even at the time of submission of the bids in respect of all but one of the areas covered by the impugned tender notice. In respect of the said area, however, the bidders have been called upon to submit performance guarantees in terms of the GR dated 26th November 2018.    

The pleaded case also revealed that in respect of a particular area, a bid has been received from a bidder, who has fabricated documents to suit its interests. Despite such fabrication, the said bidder was not disqualified and allowed to participate in the tender. If such bidder had been disqualified, there would have been one qualified bidder and having regard to GR dated 1st December 2016, the PMC would have been under an obligation to proceed for a re tender which, obviously, has not been taken recourse to, to serve the vested interest of the officers of the PMC and the said bidder.

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By an order dated 19th September 2022, the Court had called upon the PMC to file a reply affidavit by yesterday. Such an affidavit has been filed.  

At the outset, Abhijit P. Kulkarni,  advocate for the PMC has objected to the maintainability of the PIL petition. The objections are three-fold. First, he contended  that  though the impugned tender notice was issued in May, 2022, the petitioner has invoked the PIL jurisdiction of this Court on 11th September 2022 without there being any reasonable explanation for the delay. Secondly, according to Kulkarni, the trigger for the PIL is the refusal of injunction by the Civil Courts (trial court and appellate court) as claimed by the plaintiffs/appellants, who as unsuccessful bidders had challenged the terms and conditions of the tender notice before such Courts. The suggestion of  Kulkarni is that after the unsuccessful bidders failed in their pursuit of stalling the process of tender, the petitioner, whose other identity is that of a contractor, has approached this Court with motive, which can hardly be seen as bona fide.

Thirdly and finally, Kulkarni contended that despite being aware of the terms of the impugned tender notice, which was issued in May, 2022, the petitioner did not choose to lodge any objection with the Administrator of the PMC pointing out any illegality in the tender notice/process as well as seeking corrective action in terms of the extant GRs.

Anil V. Anturkar ,   senior advocate for the petitioner had, on the earlier occasion, contended that the PMC in proceeding with the tender process had not followed the GR dated 26th November 2018. This, according to him, amounted to patent illegality in the process.

On September 22 ,  Anturkar reiterated the aforesaid  contention. An allegation has been raised in the PIL petition with regard to fabrication of documents by one of the bidders. Anturkar also sought to impress upon us that in view of the admission of the concerned bidder, as appears from one of the documents annexed to the reply affidavit of the PMC, we ought to interfere and grant relief as claimed by the petitioner.

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However, having regard to the objection raised by  Kulkarni that the petitioner had not lodged any objection with the Administrator of the PMC prior to invoking the writ jurisdiction of the High Court,  Anturkar sought for leave of the Court to approach the Administrator with a suitable representation/objection and also prayed for an order that till a week after the Administrator communicates its decision on such representation/objection to the petitioner, the tender process may not be carried further.  

Such a stance was taken by Mr. Anturkar upon perusal of the judgment of a coordinate Bench of the High Court in Public Interest Litigation (L) No. 1553 of 2022 (Vijendra Kumar Rai vs. State of Maharashtra and Ors.), decided on 21st February 2022. It has been held in such decision as follows:  

“5. There is no legitimate reason as to why this salutary rule may not apply even in case of a Public Interest Litigation, where a Writ of Mandamus is claimed. After all, one of the objects of a Public Interest Litigation invoking the writ jurisdiction is to enforce public duties of the Government/authorities. The petitioner, in the present case, ought to have brought to the notice of the concerned authorities the alleged violation of the prohibitory order and    demanded action against the alleged offenders as per law. There being no demand, question of a refusal either by words or conduct does not arise. On facts, we hold that it is not a case where any of the exceptions noticed above would also apply. We are, therefore, loath to exercise our jurisdiction under Article 226 of the Constitution.”

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While agreeing with the said judgment and in view of  Anturkar’s prayer, the Division Bench of Chief Justice Dipankar Datta and Madhav J. Jamdar  see no reason to examine the rival contentions on merits. The PIL petition stands disposed of by the High Court by granting liberty to the petitioner to approach the Administrator with a suitable representation/objection. If such representation/objection is received by the Administrator, he shall proceed to decide the same in accordance with law, as early as possible. The resultant decision shall be communicated to the petitioner immediately after disposal of his representation/objection.  

“So far as the prayer of Mr. Anturkar that the tender process may not be carried forward till one week of communication of the Administrator’s decision on the representation/objection to the petitioner is concerned, we see no reason to grant such prayer in view of the decision of the Supreme Court in State of Orissa vs. Madan Gopal Rungta, reported in AIR 1952 SC 12. The prayer is, thus, refused”, the order reads.

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