High Court

Legal Reasoning

(1) wp-1723-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.1723 OF 2024Shri Sunil S/o Dilip Ramoshi, Age: 33 years, Occu.: Business,Proprietor of Maha Grampanchayat Shoppe,Nandurbar, Tq. And District Nandurbar,R/o: Plot No.35-A, Jetvan Park, Near Gurukul Nagar,Nandurbar, Tq. And District Nandurbar...PetitionerVersus1.The State of Maharashtra,Through its Secretary,Public Works Department,Mantralaya, Mumbai-32.2.The Chief Executive Officer,Zilla Parishad, Nandurbar, District Nandurbar.3.The District Program Officer,(Women and Child Development Department),Zilla Parishad, Nandurbar, District Nandurbar.4.M/s. Sudarshan Suppliers and Developers,247, Ekata Nagar, Nalva Road, Nandurbar,Tq. And District Nandurbar,Through its Proprietor,Shri Dilip Manga Thakre,Age: Major, Occu.: Business,R/o: 247, Ekata Nagar, Nalva Road, Nandurbar,Tq. And District Nandurbar...Respondents …Mr. Y. B. Bolkar, Advocate for the Petitioner.Mr. P. S. Patil, Addl. GP for Respondent No.1.Mr. R. N. Jain, Advocate for Respondent Nos.2 and 3. … CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ. DATED : 26th FEBRUARY, 2024.JUDGMENT (Per: S. G. Chapalgaonkar, J.):- 1.Rule. Rule made returnable forthwith. With the consent ofthe parties, matter is taken up for final hearing at the stage ofadmission. (2) wp-1723-2024.odt2.The petitioner approaches this Court under Article 226 ofthe Constitution of India thereby impugning order dated 18.01.2024issued by respondent no.3-District Program Officer, Zilla Parishad,Nandurbar thereby disqualifying the petitioner in E-Tender bearing IDNo.2024_NANDU-978137_1 dated 03.01.2024.3.The petitioner contends that he is the proprietorship firmduly registered under Maharashtra Shop Act under name and style as“Maha Grampanchayat Shoppe”. The petitioner claims that thepetitioner has successfully executed contract under Zilla Parishad,Nandurbar for supply of goods/material for modernization ofAnganwadis. As such, he possesses requisite experience in execution ofGovernment contract. The respondent nos.2 and 3 floated tender forsupply of adult scales to Anganwadi centers for weighing pregnant andlactating mothers. The petitioner responded the said tender since hewas compliant of requisite conditions. The documents in support of hiseligibility were made part of the tender. However, respondent no.3under the impugned order, disqualified petitioner giving two reasonsviz. (i) the petitioner do not comply condition no.3 that requirescertificate of authorized dealer from the manufacturer and (ii) thecertificate of experience for supply of goods specified in the tender noticeis not filed as per condition no.12. According to the petitioner, thereasons given for his disqualification are contrary to the record. Thepetitioner complies with both the conditions. However, he has beenwrongly disqualified for accommodating other bidders.4.Mr. Bolkar, learned Advocate appearing for the petitionerinvites our attention to the authorization letter issued by Chitlangi Giftand Toys (Manufacturing and Suppliers) of Toys, Edu. Charts, PlasticHousehold Items, etc. dated 06.01.2024 there by authorizing thepetitioner to supply products and they are ready to supply the weighingmachine as per bid documents. Mr. Bolkar, learned Advocate invites (3) wp-1723-2024.odtour attention to the experience certificate issued by the Project Officer(Child Development) certifying petitioner’s experience of supplyinggoods as indicated in the certificate. He would, therefore, submit thatduring the scrutiny of his technical bid, petitioner has been wronglydeclared as disqualified.5.Mr. Patil, learned Addl. G.P. and Mr. Jain, learnedAdvocate appearing for respondent nos.2 and 3, however, vehementlyoppose the prayer in the writ petition and submit that the petitionerhas been rightly declared as disqualified. The documents attachedalongwith the tender of the petitioner are not compliant of requisitionunder condition nos.3 and 12 of the tender notice.6.We have heard the learned Advocates appearing for therespective parties and perused the documents tendered into service.Apparently, the petitioner responded to the tender notice issued byrespondent nos.2 and 3. As can be seen from the title clause of thetender notice, the bids were invited for supply of weiging machines andselection of supplier agency. There are in all 14 qualifying conditionsfor technical bid. The relevant condition nos.3 and 12 reads thus:“3- fufonk/kkjd vf/kd`r fodzsrk@iqjoBknkj vlY;kl rls mRikndkps vf/kd`r fodzsrkvlY;kps v|kor izek.ki= fufonslkscr tksM.ks vko’;d vkgs-12- fufonsrhy [kjsnh djko;kps lkfgR; ;kiqohZ dks.kR;kgh ‘kkldh; @ fue’kkldh; @‘kkluekU;rk izkIr vkLFkkiusl lek/kkudkjd iqjoBk dsysckcr vuqHko vl.ks vko’;dvlqu rls fufonk/kkjdkl eatqj dj.;kr vkysY;k iqjoBk vkns’kkph @ lkfgR; iqjoBkdsysckcr izek.ki=kph izr vkWuykbZu viyksM dj.ks vko’;d vkgs- ”English Translation“3.If the tenderer is an authorized dealer/supplier, then themanufacturer's updated authorized dealer certificate must beattached with the tender.12.Must have previous experience in satisfactory supply ofmaterials to be procured in the tender to any Government/Semi-Government/recognized Institution and also the tenderer mustupload online a copy of approved supply order/experiencecertificate for supply of materials.” (4) wp-1723-2024.odt7.The petitioner appears to have relied upon a communicationdated 06.01.2024 issued by Chitlangi Gift and Toys to contend that hecomplies with condition no.3. The authorization letter issued byChitlangi Gift and Toys in favour of the petitioner states as under:“We Chitlangi Gift & Toys, Aurangpura Circle, AurangabadSupplier, Distributor, Seller, Manufacturer of Different types ofitems. We hereby ready to required supply of weight machine asper bid documents to Mahagrampanchayat Shoppee & alsoauthorize to submit a bid, negotiate and receive the order from youagainst your Bid Enquiry. We hereby also authorizeMahagrampanchayat Shoppee to represent us to Position &Promote Equipment’s. We hereby extend in accordance with theGeneral Conditions of mahila v bal vikas vibhag with respect tothe Goods offered by the above firm in reply to this invitation forBid. We authorized to Mahagrampanchayat Shoppee to supplyproducts covering.”8.From reading of the aforesaid communication, apparently itcan be gathered that Chitlangi Gift and Toys themselves are notmanufacturer of weighing machines nor the petitioner himself isauthorized seller or supplier of the goods manufactured by ChitlangiGift and Toys. The careful reading of the authorization clearly depictsthat the Chitlangi Gift and toys themselves are procuring goods fromthird party and shown readiness to supply the same to the petitioner orsubmit the bid, negotiate and receive order. Such communicationcannot be treated as the authorization given by the manufacturer tosupply his goods. Therefore, the contention of the petitioner thatauthorization dated 06.01.2024 given to him by Chitlangi Gift and Toyscomplies condition no.3 is not acceptable. So far as the condition no.12regarding experience of supply of goods is concerned, the petitionerrelies upon two certificates issued by Project Officer, Child DevelopmentDepartment to Anganwadi centers. However, the quantity of the supplygoods is not depicted in such certificates. Even, the specification ofsupplied goods are absent. Therefore, it is difficult to agree with the (5) wp-1723-2024.odtcontention of the petitioner that he complied with the condition no.12 orhe has been wrongly disqualified. 9.At this stage, reference can be given to the judgment of theSupreme Court of India in case of M/s N. G. Projects Limited v. M/sVinod Kumar Jain1 wherein it is observed as under:‘the Writ Court should refrain itself from imposing its decisionover the decision of the employer as to whether or not to accept thebid of a tenderer. The Court does not have the expertise toexamine the terms and conditions of the present- day economicactivities of the State and this limitation should be kept in view.Courts should be even more reluctant in interfering with contractsinvolving technical issues as there is a requirement of thenecessary expertise to adjudicate upon such issues. The approachof the Court should be not to find fault with magnifying glass inits hands, rather the Court should examine as to whether thedecision-making process is after complying with the procedurecontemplated by the tender conditions. If the Court finds thatthere is total arbitrariness or that the tender has been granted ina malafide manner, still the Court should refrain from interferingin the grant of tender but instead relegate the parties to seekdamages for the wrongful exclusion rather than to injunct theexecution of the contract. The injunction or interference in thetender leads to additional costs on the State and is also againstpublic interest. Therefore, the State and its citizens suffer twice,firstly by paying escalation costs and secondly, by being deprivedof the infrastructure for which the present-day Governments areexpected to work’.10.Applying the aforesaid principles of law espoused bySupreme Court of India to the facts of the present case, no case is madeout to cause interference in the impugned order in exercise of Writjurisdiction of this Court under Article 226 of the Constitution of India. 11.Hence, Writ Petition stands dismissed.12.Rule is discharged.(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/February-202412022 LiveLaw (SC) 302.