High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD914 WRIT PETITION NO.955 OF 2024Dattatray Hamal & MapadiSahakari Sanstha Maryadit, JalgaonThrough itsBala Parshuram Jadhav,Age 45 yrs., Occ. Worker,R/o Shop No.8, Gita Shankar Apartment,Ganesh Colony Chowk, Jalgaon. … Petitioner… Versus …1The State of MaharashtraThrough Food Civil Supply,Consumer Protection Department,Mantralaya, Mumbai. 2The Collector,Nandurbar, Tq. & Dist. Nandurbar. 3The District Supply Officer,Collector Office, Nandurbar,Dist. Nandurbar. 4The Adivasi Hamal Mapadiand Malvahtuk Sahakari SansthaMaryadit, Molagi, Tq. Akalkuwa,Dist. Nandurbar. 5Falai Durbal Ghatak Hamal MapadiSwaynrozgar Sahakari Sanstha Maryadit,Shahada, Tq. Shahada, Dist. Nandurbar. 6Yaha Mogi Hamal Mapadi KamgarSanstha Maryadit, Nashik. … Respondents
Legal Reasoning
2WP_955_2024...Mrs. Rashmi S. Kulkarni, Advocate a/w Mr. S.S. Kulkarni, Advocate forpetitionerMr. N.S. Tekale, AGP for respondent Nos.1 to 3...CORAM :SMT. VIBHA KANKANWADI &S.G. CHAPALGAONKAR, JJ.DATE:25th JANUARY, 2024ORDER :(PER : SMT. VIBHA KANKANWADI, J.)1The present petitioner challenges the qualification of respondentNos.4 to 6 for the purpose of tender issued for handling of food grains inNandurbar district. 2The petitioner Mathadi Society is working since 2003 inhandling and distribution of food grains in the Government godown. Thepetitioner is registered co-operative society. Terms and conditions in thetender were enumerated in State Government Resolution dated 06.03.2023.Condition No.14.6 expressly stated that the document required to besubmitted along with tender will not be accepted after submission of thetender and no fresh documents would be accepted. The petitioner bid cameto be rejected as it has tried to submit its documents after the said cut off 3WP_955_2024date; yet, opportunity was given to respondent Nos.4 to 6 to comply with thedocuments. Therefore, the acceptance of the technical bid of respondentNos.4 to 6 by respondent No.2 is illegal and the tender itself needs to bequashed and set aside. 3Heard learned Advocate Mrs. Rashmi S. Kulkarni for thepetitioner and learned AGP Mr. N.S. Tekale for respondent Nos.1 to 3 at thestage of admission. 4Learned Advocate for the petitioner relied on the decision inParashar Hamal Kamgar Co-operative Society Limited, Paradh (Bk) vs. TheState of Maharashtra and others in Writ Petition No.7279 of 2023 withcompanion matters decided by this Court on 29.11.2023. It is observed thatthe condition regarding the area of operation of the society taking part in thebid should be of a particular district is unreasonable and arbitrary. Therefore,the bid of the petitioner ought not to have been rejected and further whenthere is specific term stated that no documents can be allowed to be later onpresented; yet, it appears that respondent Nos.4 and 5 placed thosedocuments on record after the finalization of the bid. Therefore, the actiontaken by respondent Nos.2 and 3 is arbitrary. 5At the outset, we can see that petitioner’s technical bid was not 4WP_955_2024accepted on the ground that his area of operation is Jalgaon district and notNandurbar district. With knowing fully well that the tenders are invited fromthe institutions which have the area of operations over respondent No.2, thenthe petitioner should have had requisite licence from the competentdepartment. After participating the entire process the petitioner cannot saythat the said term is illegal or arbitrary. 6We would also like to rely on the following observations byHon’ble Supreme Court in M/s. N.G. Projects Limited vs. M/s. Vinod KumarJain and others [2022 LiveLaw (SC) 302], wherein it has been held that - “23.In view of the above judgments of this Court, the Writ Courtshould refrain itself from imposing its decision over the decision ofthe employer as to whether or not to accept the bid of a tenderer. TheCourt does not have the expertise to examine the terms andconditions of the present-day economic activities of the State and thislimitation should be kept in view. Courts should be even morereluctant in interfering with contracts involving technical issues asthere is a requirement of the necessary expertise to adjudicate uponsuch issues. The approach of the Court should be not to find faultwith magnifying glass in its hands, rather the Court should examineas to whether the decision-making process is after complying with theprocedure contemplated by the tender conditions. If the Court findsthat there is total arbitrariness or that the tender has been granted ina mala fide manner, still the Court should refrain from interfering inthe grant of tender but instead relegate the parties to seek damagesfor the wrongful exclusion rather than to injunct the execution of thecontract. The injunction or interference in the tender leads toadditional costs on the State and is also against public interest.Therefore, the State and its citizens suffer twice, firstly by paying 5WP_955_2024escalation costs and secondly, by being deprived of the infrastructurefor which the present-day Governments are expected to work.”It is required to be seen, as to whether the petitioner ought tohave been held eligible; yet, has been unnecessarily discarded and then if theanswer to these questions come in affirmative, then only the petitioner wouldbe entitled to challenge the qualification of respondent Nos.4 to 6. Here, thepetitioner appears to have accepted its own disqualification. There is nodocument produced on record which would show that the area of operationof the petitioner was over the period of respondent No.1. In fact, it was amandatory or inherent condition. The petitioner participated in the entireprocess fully well about the terms or eligibility criteria. When the petitionercannot held entitle to succeed in the qualifying round for the technical bid,he cannot be asked to participate or allow to participate in the financial bid.The situation in Writ Petition No.7279 of 2023 relied by learned Advocate forthe petitioner is different. In Parashar Hamal Kamgar Co-operative SocietyLimited (supra) it is rather observed that it cannot be held that the conditionfor area restriction i.e. registration of the society or operation of the societyshould be restricted to one district. It is held that it is not arbitrary orunreasonable, it is only considering the interest of the labourer and labourco-operative societies and in the light of having fair distribution of work to 6WP_955_2024the labourers from different districts, the stipulation restricting only thesocieties registered from a particular district has been provided. 7It was also then submitted that objection has been taken by thepetitioner in respect of qualification of respondent Nos.4 to 6, however, thathas not been decided and the mechanism has been given for grievanceredressal; yet, the said grievance has not been redressed and yet financial bidmight be opened. We may not be able to appreciate this point for the simplereason that the petitioner himself had not qualified and, therefore, it cannotbe said that he can challenge the qualification of any other person as violativeof Article 14 or 19 of the Constitution of India. Though the GrievanceRedressal Forum appears to have been made available, when the tendersubmitted by the petitioner lacks inherent defect and that too, withknowledge that the tenders were invited from the society having registrationover a particular district; yet, when the bid is submitted, such person cannotseek equality. The petition, therefore, deserves to be dismissed at thethreshold. Accordingly, the writ petition stands dismissed. (S.G. CHAPALGAONKAR, J.)( SMT. VIBHA KANKANWADI, J. )agd