Research › Search › Judgment

Madhya Pradesh High Court · body

2021 DIGILAW 617 (MP)

USMAN KHAN v. MUNICIPAL CORPORATION, MORENA

2021-08-26

G.S.AHLUWALIA

body2021
ORDER/JUDGMENT – Shri Ashish Saraswat, Advocate for petitioner. Shri K. K. Prajapati, Advocate for respondents No. 1 and 2. None for respondent No. 3, though served. This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs : – “It is therefore most humbly prayed that the present petition may kindly be allowed by the Hon’ble Court and agreement dated 27-8-2020 executed between the Municipal Commissioner, Municipal Corporation, Morena and the respondent No. 3 be set aside. The respondent No. 1 and 2 be directed to grant contract to the petitioner or invite fresh N.I.T. Any other relief which the Hon’ble Court deems fit considering the facts of the case be granted in favour of the petitioner for the advancement of justice.” 2. It is submitted by the counsel for the petitioner that E-NIT (Notice Inviting Tender) was published by the Commissioner, Municipal Corporation, Morena for collection of Saptahik Pashuhaat Pashu Panjiyan Shulk Vasuli Theka. As per Clause 6 of the NIT, out of the collected/realized amount, minimum 60% was to be deposited in the account of Municipal Corporation and remaining amount was to be kept by the Contractor. It was also mentioned in Clause 4 of the NIT that in case if there is any amendment, then it shall be published on the official website. Three bidders including the petitioner submitted their bids. According to which, (i) M/s Girraj Construction Company offered 78.22% of share to the Municipal Corporation, whereas, (ii) Abbasi Construction and Order Suppliers offered 99.01% share to the Municipal Corporation and (iii) the petitioner offered only 18.05% of share to the Municipal Corporation. It is submitted that thereafter on 30-7-2020 a letter was submitted by respondent No. 1 in which he clarified that he will take only 1% of the entire collection amount in place of 0.99%. It is submitted that no information was given to other bidders by the Municipal Corporation and no amendment was published on the website. The objection submitted by the petitioner was kept pending and during pendency of the objection, contract has been executed with respondent No. 3 on 27-8-2020 and work order has been issued. The petitioner had demanded a copy of Rules under the RTI and the entire copy of Rules was not provided and only a copy of sections 6 to 9 of Municipal Corporation Act, 1956 was provided. The petitioner had demanded a copy of Rules under the RTI and the entire copy of Rules was not provided and only a copy of sections 6 to 9 of Municipal Corporation Act, 1956 was provided. It is further submitted that it is not feasible for any contractor to arrange the market place, medical facilities, water and fodder etc. for cattle at his own cost at a meager amount of 1% of the realized amount. It is further submitted that respondent No. 3 never participated in the bid. Although he is the Proprietor of Abbasi Construction and Order Suppliers, but instead of entering into a contract with the successful bidder, i.e. Abbasi Construction and Order Suppliers, respondents have entered into the contract with respondent No. 3 in his personal capacity, therefore, the agreement executed with respondent No. 3 is bad in law. 3. Per contra, the counsel for respondents No. 1 and 2 supported the case of the respondents No. 1 and 2. 4. None appears for the respondent No. 3, though served. 5. Heard learned counsel for the parties. 6. It is the case of the petitioner that as per the NIT, 60% of the realized amount was to be deposited in the account of Municipal Corporation, Morena, whereas 40% was to be retained by the contractor, however, the Municipal Corporation has awarded the contract to the respondent No. 3 on the condition that 99% of the realized amount shall be deposited in the account of Municipal Corporation, Morena and only 1% of the realized amount shall be retained by the contractor. It is submitted that no amendment was introduced thereby relaxing 60/40 percentage policy. However, the counsel for the petitioner could not point out as to why the petitioner himself had offered only 18.05% share to respondents No. 1 and 2. If the petitioner was of the view that the contractor has to offer 60% share of the realized amount to the Municipal Corporation, then he should have offered 60% share to the Municipal Corporation and not 18.05%. Thus, it is clear that the bidders were aware of the fact that 60/40 percentage is merely a cut-off percentage and it was not final. Accordingly, the contention of the petitioner that the respondents have modified the NIT is rejected. 7. Thus, it is clear that the bidders were aware of the fact that 60/40 percentage is merely a cut-off percentage and it was not final. Accordingly, the contention of the petitioner that the respondents have modified the NIT is rejected. 7. So far as the submission that the successful bidder was Abbasi Construction and Order Suppliers, whereas the respondents have entered into an agreement with respondent No. 3 is concerned, there appears to be some mistake on the part of respondents No. 1 and 2. It is the case of the respondents No. 1 and 2 that the respondent No. 3 is the Proprietor of Abbasi Construction and Order Suppliers. This fact has not been denied by the petitioner. The respondents in reply to ground 6(D) have mentioned as under : – “6.D. In reply to para (6.D) of this petition as stated are not correct, hence, denied. It is respectfully submitted that the proprietor of M/s Abbasi Construction and Suppliers is Shakeel Mohammad who is competent to execute the agreement on behalf of the firm.” 8. Thus, it is clear that respondents No. 1 and 2 have entered into an agreement with respondent No. 3 on a misconception that since the respondent No. 3 is the Proprietor of Abbasi Construction and Order Suppliers, therefore, the agreement can be executed in favour of the Proprietor only and not the Firm. Accordingly, the respondents No. 1 and 2 are directed to amend the agreement and in place of Shakeel Mohammed Abbasi, it should be corrected as Abbasi Construction and Order Suppliers through its Proprietor Shakeel Mohammed Abbasi. 9. It is next contended by the counsel for the petitioner that it is not feasible and not possible for a contractor to run the Weekly Cattle Animal Market by retaining only 1% of the realized amount. 10. This Court while entertaining the writ petition in a contractual matter can look into the decision making process only. The counsel for the petitioner could not point out any lapse in the procedure adopted by the respondents. The petitioner was well aware of the fact that 60/40 percentage mentioned in the NIT is merely a cut-off percentage and that is why he himself had offered only 18.05 percentage of the realized amount to the Municipal Corporation. The counsel for the petitioner could not point out any lapse in the procedure adopted by the respondents. The petitioner was well aware of the fact that 60/40 percentage mentioned in the NIT is merely a cut-off percentage and that is why he himself had offered only 18.05 percentage of the realized amount to the Municipal Corporation. The petitioner was the lowest bidder and even if the submissions made by the petitioner are accepted, still no agreement can be executed in his favour because M/s Girraj Construction Company is the second highest bidder and the said company has not challenged the bid process. 11. Considering the totality of the facts and circumstances of the case, this Court is of the considered opinion that no case is made out warranting interference. 12. Accordingly, the petition fails and is hereby dismissed.