High Court
Legal Reasoning
WP-933-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.933 OF 2024Samarth Infra-Tech Services Pvt. Ltd.Registered Office : Office No.40 and 41,5th Floor, Lokmanya House,Lokmanya Colony, Opp. Kothrud PoliceStation, Paud Road, Kothrud, Pune – 4011038Through its General Manager.. PETITIONERVERSUS1.The State of Maharashtra,Through its Principal Secretary,Water Resources Department,Mantralaya, Mumbai-32.2.Godavari Marathwada IrrigationDevelopment Corporation,Sinchan Bhavan, Jalna Road,Chh. Sambhajinagar 431005,Through the Executive Director.3.The Executive Engineer,Minor Irrigation Division No.1,Sinchan Bhavan, Jalna Road,Chhatrapati Sambhajinagar-431005.4.Shri Ashish s/o Shirish Waghchaure,Age: Major, Occu.: Contractor,R/o. Deogiri Keshardeep,Near Bhagatsingnagar, Harsul,Chhatrapati Sambhajinagar-431008... RESPONDENTS…Mr. S. T. Shelke, Advocate for petitioner.Mr. P. S. Patil, AGP for Respondent No.1 – State.Mr. Hemant Dhage, Advocate for Respondent Nos.2 and 3.Mr. S. G. Bhalerao, Advocate for Respondent No.4.…[1] WP-933-2024.odtCORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.DATE : JANUARY 30, 2024. ORDER (Per Smt. Vibha Kankanwadi, J.) :- .By invoking the constitutional powers of this Court under Article226 of the Constitution of India, the petitioner has prayed for followingrelief :-“B)Quash and set aside the decision of respondentNo.3 of holding the petitioner as disqualified and therespondent No.4 as qualified as per Exhibit-B and theconsequent Work Order dated 27.12.2023 at Exhibit-Cissued by respondent No.3 in favour of respondent No.4and thereafter, further direct the respondent No.3 to openthe Tender (Financial Bid) of the petitioner holding him asqualified in Technical Bid and for that purpose issue anecessary writ or order.”2.The facts leading to the present petition are that the petitioner isa private limited company. Respondent No.3 published the B-1 TenderNotice thereby inviting the tenders from the competent biddersthrough E-Tender System (Online) for the work of preparation ofdetailed construction plan for pipe distribution network systemincluding necessary command survey, linear survey for pipe laying,chak planing, designing of pipe network and preparation of estimatefor Canal No.1 RD to 37 km of Bramhagavhan L.I.S. Part-II, Taluka[2] WP-933-2024.odtPaithan, District Chhatrapati Sambhajinagar. The estimated cost of thiswork is Rs.94,12,755/- (Work Portion – Rs.79,09,878/- + GST andInsurance Rs.15,02,877/-). It is mentioned in the tender notice thatall the information regarding the E-tender is available on theGovernment Website and on the notice board of the Divisional Office.The tender documents were to be uploaded from the GovernmentWebsite. It is further mentioned that the contractor/bidder has toensure that the First Envelope (Technical Bid) shall contain thedocuments as enlisted in the tender notice. It is further mentionedthat all the photocopies submitted in connection with tender shall beattested by the Gazetted Officer, otherwise their tender will not beconsidered and Envelope No.2 will not be opened. Further, it ismentioned that the first envelope (Technical Bid) was to accompanythe documents which are stated in paragraph No.3 of the present writpetition. Thereafter, as per the scheduled program, E-tenders wereopened on 07.12.2023 and it appears that only four bidders havesubmitted their tenders. The petitioner and one Arun Idhate came tobe disqualified and respondent No.4 and one Sandip Gore came to bequalified in the technical bid on 22.12.2023. Thereafter respondentNo.3 issued the work order dated 27.12.2023 to respondent No.4,which was uploaded on the website on 29.12.2023. The petitionerthereafter made representations to all the authorities bringing to theirnotice that the petitioner has been erroneously declared as disqualified[3] WP-933-2024.odtin the technical bid and respondent No.4 has been held eligible for thetender. It is the case of the petitioner that respondent No.4 had notsubmitted the copies of the documents duly attested by the GazettedOfficer as was asked for and, therefore, his technical bid could nothave been considered and opened. So also the respondent No.4 hadnot submitted the certificate regarding machinery items. It is thefurther case of the petitioner that the respondent No.4 has notsubmitted the EPF Clearance Certificate. It is also contended that therespondent No.4 had not submitted the work certificates of thequantity and magnitude of Grid Survey of at least 7393 Hectare ofland issued by the Executive Engineer as mentioned in the documentslist clause No.l of Envelope No.1, but submitted the certificate of aprivate entity. It is contended that two reasons have been assignedfor rejection of the technical bid of the petitioner i.e. Empanelmentcertificate was not submitted and the documents are not digitallysigned. Further, it is contended that the petitioner has submittedregistration certificate of Maharashtra Public Works Department. Allthe tender documents submitted by the petitioner are signed by thepetitioner and all the certificates submitted by the petitioner aresigned by the Executive Engineer of Maharashtra Jeevan Pradhikaran,who is a Gazetted Officer. In view of this it was not necessary to signthe documents digitally and the so called defect is not of substantialnature. The petitioner contends that his tender was complete in all[4] WP-933-2024.odtrespects and has been rejected mala fide by respondent No. 3 onlywith a view to favour repsondent No.4. Hence, this petition.3.Heard learned Advocate Mr. S. T. Shelke for the petitioner,learned AGP Mr. P. S. Patil for respondent No.1 – State, learnedAdvocate Mr. Hemant Dhage for respondent Nos.2 and 3 and learnedAdvocate Mr. S. G. Bhalerao for respondent No.4.4.Learned Advocate for the petitioner submits that respondentNo.4 had not complied with the mandatory requirement clause No.‘k’in Envelope No.1 i.e. scanned copy of Employees Provident Fundregistration and its clearance, still respondent No.4 has been held tobe qualified and the work order has been issued. The petitioner washolding the requisite certificate of empanelment. He relies on theGovernment Resolution dated 18.10.2023 and submits that necessarytime ought to have been given in view of the said GovernmentResolution. He has also produced on record the circular issued byMaharashtra Jivan Pradhikaran dated 08.04.2021 in which the workdistribution was made and thereby Panel of Administrative Advisorswere fixed for Aurangabad. They had appointed the petitioner. He hasalso filed the other letters/orders showing that the petitioner wasappointed as consultant/advisor. The petitioner was also appointed asadvisor by other States. Therefore, it cannot be said that the petitionerwas not qualified. The disqualification of petitioner is improper. So[5] WP-933-2024.odtalso, holding respondent No.4 as qualified is also improper anddeserves to be set aside. 5.The learned Advocate for respondent No.4 submitted that thework order has been issued and 90% of the work is completed. Herelied on M/s. N.G. Projects Limited Vs. M/s. Vinod Kumar Jain, [2022LiveLaw (SC) 302] and M/s. Tirupati Construction Vs. The State ofMaharashtra and Others, [2021 (3) ALL MR 258].6.As aforesaid, the petition is on two counts, firstly to challengethe petitioners own disqualification and secondly, to challenge thequalification of respondent No.4. We would like to rely on the decisionin M/s. N.G. Products Limited (Supra), in which the earlier decisionshave been taken note of and it has been observed that :-“23.In view of the above judgments of this Court,the Writ Court should refrain itself from imposing itsdecision over the decision of the employer as towhether or not to accept the bid of a tenderer. Thecourt does not have the expertise to examine the termsand conditions of the present-day economic activities ofthe State and this limitation should be kept in view.Courts should be even more reluctant in interfering withcontracts involving technical issues as there is arequirement of the necessary expertise to adjudicateupon such issues. The approach of the Court should benot to find fault with magnifying glass in its hands,[6] WP-933-2024.odtrather the Court should examine as to whether thedecision-making process is after complying with theprocedure contemplated by the tender conditions. Ifthe Court finds that there is total arbitrariness or thatthe tender has been granted in a mala fide manner, stillthe Court should refrain from interfering in the grant oftender but instead relegate the parties to seekdamages for the wrongful exclusion rather than toinjunct the execution of the contract. The injunction orinterference in the tender leads to additional costs onthe state and is also against public interest. Therefore,the State and its citizens suffer twice, firstly by payingescalation costs and secondly, by being deprived of theinfrastructure for which they present-day Governmentsare expected to work.”7.We are aware of the decision in Jagdish Mandal Vs. State ofOrissa, (2007) 14 SCC 517, wherein Hon’ble Supreme Court has heldthat :-“22.Judicial review of administrative action isintended to prevent arbitrariness, irrationality;unreasonableness, bias and mala fides. Its purpose isto check whether choice or decision is made “lawfully”and not to check whether choice or decision is “sound”.When the power of judicial review is invoked in mattersrelating to tenders or award of contracts, certain specialfeatures should be borne in mind. A contract is acommercial transaction. Evaluating tenders andawarding contracts are essentially commercial[7] WP-933-2024.odtfunctions. Principles of equity and natural justice stay ata distance. If the decision relating to award of contractis bona fide and is in public interest, courts will not, inexercise of power of judicial review, interfere even if aprocedural aberration or error in assessment orprejudice to a tenderer, is made out. The power ofjudicial review will not be permitted to be invoked toprotect private interest at the cost of public interest, orto decide contractual disputes. The tenderer orcontractor with a grievance can always seek damagesin a civil Court. Attempts by unsuccessful tendererswith imaginary grievances, wounded pride and businessrivalry, to make mountains out of molehills of sometechnical/procedural violation or some prejudice to self,and persuade courts to interfere by exercising power ofjudicial review, should be resisted. Such interferences,either interim or final, may hold up public works foryears, or delay relief and succour to thousands andmillions and may increase the project cost manifold.Therefore, a Court before interfering in tender orcontractual matters in exercise of power of judicialreview, should pose to itself the following questions :(i)Whether the process adopted or decision madeby the authority is mala fide or intended to favoursomeone;orWhether the process adopted or decision made is soarbitrary and irrational that the court can say: “thedecision is such that no responsible authority actingreasonably and in accordance with relevant law could[8] WP-933-2024.odthave reached”;(ii)Whether public interest is affected.If the answers are in the negative, there should be nointerference under Article 226. Cases involvingblacklisting or imposition of penal consequences on atenderer/contractor or distribution of State largesse(allotment of sites/shops, grant of licences, dealershipsand franchises) stand on a different footing as theymay require a higher degree of fairness in action.”8.Thus, taking into consideration the well settled law on this point,we have limited scope. Since the petition requires attention on twocounts i.e. the petitioner’s own disqualification and qualification ofrespondent No.4, as aforesaid, we would like to deal with thedisqualification point first, for discussion.9.Perusal of the tender notice would show that it was stated thatEnvelope No.1 should contain the list of documents given thereunder.Point ‘q’ was in respect of, Empanelment Certificate in the name ofsole bidder as a working consultant/Independent Engineer with anyGovernment Department for survey, hydraulic design and consultingworks is mandatory. It is stated that no such certificate was attached.The petitioner has not produced any such document, which he hasnow tendered across the bar i.e. the certificate showing that he was[9] WP-933-2024.odtempaneled consultant with various authorities including MaharashtraJivan Pradhikaran, Government of Bihar, Uttar Pradesh State IndustrialDevelopment Authority, Gujarat Urban Development Mission,Government of Jharkhand, Madhya Pradesh Jal Nigam, EnvironmentalPlanning and Coordination Organization. In spite of having documentswith him if those were not produced, then the petitioner will have toblame itself. Condition No.23 of the tender notice reads thus :-23.fufonk dkxni= lkscrps udk’ks da=kVnkjkus Lok{kfjr d#ulknj u dsY;kl [kkyhy vk’k;kps ca/ki= n~;kos- “ladsrLFkGkojhyudk’ks eh ikfgys vkgsr rh fufonk dkxni=pkp Hkkx vlqu ;k loZckchapk fopkj d#u eh fufonk Hkjyh vkgs- ek>h fufonk eatqj >kY;kllqj{kk jDde Hk#u dk;kZjaHk vkns’k ?ks.;kiwohZ] udka’kkoj eh lg~;kd#u miyC/k d#u nsbZu-” Therefore, the petitioner ought to have shown that this conditionis also complied with by him. The said tender was in respect ofpreparation of detailed construction plan for pipe distribution networksystem and now it is said that respondent No.4 has completed 90% ofthe work. At this stage, the same cannot be disturbed and interferedwith. The petitioner would be at liberty to agitate in an appropriateproceeding that respondent No.4 ought not to have been granted bidby showing as to what damages the petitioner has suffered. When thepetitioner himself was unsuccessful, he cannot raise the objection inrespect of qualification of another bidder, unless it is shown that his[10]
Decision
WP-933-2024.odtdisqualification has resulted in the damages. 9.In view of the above, we are of the opinion that no case is madeout for exercising the constitutional powers of this Court under Article226 of the Constitution of India. 10.Hence, the Writ Petition stands dismissed. [ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[11]