High Court

Legal Reasoning

WP-1903-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.1903 OF 2023M/s. Shreya Enterprises,Through its Proprietor,Smt. Sunita w/o Rama Kalkute,Age: 28 years, Occu.: Business,R/o. Shreya Building, Raje ChhatrapatiChowk, Ambika Nagar, Kholwat,District Beed... PETITIONERVERSUS1.The State of MaharashtraThrough its Principal Secretary,Public Works Department,Mantralaya, Mumbai.2.The State of MaharashtraThrough its Principal Secretary,Rural Development Department,Mantralaya, Mumbai.3.The Chief Executive Officer,Zilla Parishad, Beed.4.The Executive Engineer,Rural Water Supply Division,Beed, District Beed.5.Santosh s/o Shamsunder PaduleAge: 35 years, Occu.: Business,R/o. Shivshankar Building,Sawata Mali Chowk, Mondha Road,Beed, District Beed. .. RESPONDENTS…Mr. A. B. Chalak, Advocate for the petitioner.Mr. P. S. Patil, AGP for respondent Nos.1 and 2 – State.Mr. P. D. Suryawanshi, Advocate for respondent Nos.3 and 4.Ms. Rakha M. Choudhari, Advocate for respondent No.5.… [1] WP-1903-2023.odt CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.DATE : JANUARY 23, 2024.JUDGMENT (Per Smt. Vibha Kankanwadi, J.) :- .Rule. Rule made returnable forthwith. Heard learned Advocatesfor the appearing parties finally by consent.2.By invoking the constitutional powers of this Court under Article226 of the Constitution of India, the petitioner has prayer for followingreliefs :-“A)To quash and set aside the tender process forWater Supply Scheme at Tarnali, Taluka Kaij, DistrictBeed under Jal Jeevan Mission, which is being carriedout in pursuant to the tender notice dated 28.12.2022issued by respondent Nos.3 and 4 by issuing a writ ofcertiorari or any other appropriate writ, order ordirections etc., as the case may be.B)To quash and set aside the declaration of therespondent No.5 who has been declared as a successfullowers bidder L1 in pursuant to the financial bid for thetender process for “Water Supply Scheme at Tarnali,Taluka Kaij, District Beed under Jal Jeevan Mission”, byissuing a writ of certiorari or any other appropriate writ,order or directions etc., as the case may be.C)To direct the respondents to revoke/recall thetender process for “Water Supply Scheme at Tarnali,Tqluka Kaij, District Beed under Jal Jeevan Mission”[2] WP-1903-2023.odtwhich is being carried out in pursuant to the tendernotice dated 28.12.2022 issued by the respondent No.3and 4 and to invite afresh tenders in view of the clause17 of the tender notice by issuing a writ of mandamusor any other appropriate writ, order or directions etc.,as the case may be.Further, by way of amendment, following relief has beenprayer :-F)To quash and set aside the work order dated10.02.2023 for Water Supply Scheme at Tarnali, TalukaKaij, District Beed under Jal Jeevan Mission issued infavour of respondent No.5 in view of Tender Noticedated 28.12.2022 by the respondent No.4, by issuingwrit of certiorari or any other appropriate writ, order ordirections; as the case may be.”3.The factual matrix leading to the petition are that the petitionerfirm is a government contractor who is engaged in the business ofwater supply with the joint venture of Madhavrao Tukaram Phad withinthe State of Maharashtra. It is contended that the respondent Nos.3and 4 issued Notice dated 28.12.2022 and invited tender forassigning/allotting work of water supply scheme at Tarnali, Taluka Kaij,District Beed under Jal Jeevan Mission as per the norms laid downunder tender notice. It is contended that the petitioner participated inthe said tender process by paying EMD amount online with all thenecessary documents as per the tender notice. It is further contendedthat in all total eight bidders participated in pursuant to the said[3] WP-1903-2023.odttender notice including respondent No.5. It is contended that on15.01.2023, the petitioner received E-mail from respondent No.4asking the petitioner to submit a tender ID for collaboration withagencies within 24 hours, failing which the petitioner firm will bedisqualified from the tender Process. It is contended that on16.01.2023 at 11.13 a.m., the petitioner submitted tender ID alongwith some work orders, in view of the said E-mail by respondent No.4.It is contended that despite of that on 17.01.2023, respondent No.4called all the participated bidders including the present petitioner forhearing before the respondent No.3 so as to comply with thedeficiencies pointed out by the respondents. On 18.01.2023, duringthe course of hearing, again the petitioner submitted all the requireddocuments, which were pointed out by the respondents. Thereafter, on31.01.2023 at 02.21 p.m., technical bid came to be opened byrespondent Nos.3 and 4, however, surprisingly the petitioner came tobe disqualified on account of non-submission of tender ID. On thesame day at 4.03 p.m., finance bid came to be opened and respondentNo.5 was declared to be a successful lowest bidder (L1). Despite ofsubmitting the tender ID and complied with all the documents andremoving all the deficiencies pointed out by respondent Nos.3 and 4,the petitioner came to be disqualified. Therefore, the act of therespondents thereby disqualifying the petitioner in technical bid andnot admitting in finance bid, so also declaring respondent No.5 as[4] WP-1903-2023.odtsuccessful and qualified lowest bidder, is arbitrary and unreasonable,as it amounts to violation of Article 14 of the Constitution of India.Hence, this petition.4.Affidavit-in-reply of Sunildatta s/o Bhagwat Dhabekar, In-chargeExecutive Engineer, Rural Water Supply Department, Zilla Parishad,Beed has been filed on behalf of respondent Nos.1 to 3. It has beencontended that respondent Nos.1 to 3 have considered all theexperience certificates for the purpose of technical bid and thereafterdisqualified the petitioner from the tender process. In the scrutinychart of technical bid, the information of components has been givenand after considering the entire experience certificate, the experienceof the petitioner has been mentioned in the said scrutiny chart. It iscontended that to verify whether these works have been allotted tothe petitioner and whether those works have been completed by him,proper experience certificate under the signature of ExecutiveEngineer is required and then only the experience has been countedand considered for technical bid. The petitioner has submitted tendersummary reports with tender ID, but from those papers theinformation is not reflected about the specification of works andwhether the works are completed by the petitioner. Specific conditionsmentioned in tender notice dated 28.12.2022 are not complied with bythe petitioner and, therefore, the petitioner has been declared as[5] WP-1903-2023.odtdisqualified. It has been further contended that the Collector is thehead of the committee at district level, under whose supervision theJal Jeevan Mission is to be implemented. In Beed district about 1265villages have been selected for implementation of the said scheme andas on today, 1192 work orders have been issued in favour of thelowest bidders by floating tenders and they have started the works asper guidelines and the project reports. Due to some issues have beenraised in 7 villages, the work orders have not yet issued and the workshave not been started. Due to the vast program and implementationof scheme in 1265 villages, the work order dated 10.02.2023 couldnot be uploaded on the website immediately and it does not mean thatthere is something fishy and it is backdated order. The allegations ofthe petitioner regarding issuance of work order are totally false andbaseless. Under such circumstance, uploading the work orderbelatedly on the website does not create any right to the petitioner toget qualify in the tender process. 5.The petitioner has filed rejoinder to the affidavit-in-reply filed byrespondent Nos.1 to 3 and denied all the contentions raised on behalfof the respondent Nos.1 to 3. 6.Heard learned Advocate Mr. A. B. Chalak for the petitioner,learned AGP Mr. P. S. Patil for respondent Nos.1 and 2 – State, learnedAdvocate Mr. P. D. Suryawanshi for respondent Nos.3 and 4 and[6] WP-1903-2023.odtlearned Advocate Ms. Rekha M. Choudhari for respondent No.5.7.Learned Advocate for the petitioner has taken us through thedocuments annexed with the petition. It is then submitted that thepetitioner with joint venture agreement with one M. T. Phad took partin the tender process in respect of village Tarnali, Taluka Kaij, DistrictBeed, however, the said tender has been rejected on the ground thattender ID was not given i.e. clause No.36 in the E-tender notice. Hepoints out the certificate issued by Maharashtra Jeevan PradhikaranDivision, Ahmednagar on 09.03.2022, which showed the workexperience of M/s. M. T. Phad and the said certificate was issued bythe Executive Engineer, which was the requirement of respondentNo.3. Further, work experience certificate was given under thesignature of Executive Engineer, Municipal Corporation, Akola on27.01.2022. Therefore, the disqualification of the petitioner is wrongand needs to be set aside.8.Per contra, the learned Advocate for respondent Nos.3 and 4submitted that the petitioner was aware about the compliance to bemade. Mentioning of tender ID was necessary in view of clause No.36.The certificate dated 09.03.2022, which was uploaded, does not bearthe tender ID and the document which has been now attached to thepetition bears the tender ID in handwriting which appears to be amanipulated document. As regards another document i.e. the[7] WP-1903-2023.odtcertificate issued by Municipal Corporation, Akola, it does not mentionthe tender ID, therefore, the decision that was taken by the authoritywas in terms of the tender condition, as they were not complied withby the petitioner.9.At the outset, it is to be noted that out of the said joint ventureonly one person i.e. the proprietor of M/s. Shreya Enterprises haschallenged the disqualification. The person with whom she had enteredinto the agreement of joint venture has not been made as a party, norhe has joined her in filing the petition. She was relying on thecertificates issued in favour of M/s. M. T. Phad by the concernedauthorities, but as aforesaid said M/s. M. T. Phad is not a party beforeus. We have perused the original file of the tender and find substancein the say of respondent Nos.3 and 4 that when the certificate issuedby Maharashtra Jeevan Pradhikaran Division, Ahmednagar wasuploaded, it was not bearing the tender ID. It appears to have beentaken at later point of time. Why it is in handwriting when the othermajor contents are in printed form has not been explained. As regardsanother experience certificate issued by Akola Municipal Corporation,the tender ID has not been mentioned. Then there are other twodocuments which appear to be the work orders, not the experiencecertificate as required under clause No.36. Similarly, on the experiencecertificate issued by Maharashtra Jeevan Pradhikaran Division, Thane,[8] WP-1903-2023.odtno tender ID has been mentioned. Thus, there was no compliance ofclause No.36. Further, learned Advocate for respondent Nos.3 and 4submits that there is no compliance of clause No.34, which requiresthat all the documents should be digitally signed and the workexperience should be certified by the competent authority regardingthe work done. As per the tender notice, it was made compulsory thatthose certificates should be signed by the Executive Engineer.10.We would like to rely on the decision in M/s. N. G. ProjectsLimited Vs. M/s. Vinod Kumar Jain and Ors., [2022 LiveLaw (SC) 302],wherein it has been observed that :-“23.In view of the above judgments of this Court, theWrit Court should refrain itself from imposing its decisionover the decision of the employer as to whether or not toaccept the bid of a tenderer. The court does not have theexpertise to examine the terms and conditions of thepresent-day economic activities of the State and thislimitation should be kept in view. Courts should be evenmore reluctant in interfering with contracts involvingtechnical issues as there is a requirement of the necessaryexpertise to adjudicate upon such issues. The approach ofthe Court should be not to find fault with magnifying glass inits hands, rather the Court should examine as to whetherthe decision-making process is after complying with theprocedure contemplated by the tender conditions. If theCourt finds that there is total arbitrariness or that the tenderhas been granted in a mala fide manner, still the Courtshould refrain from interfering in the grant of tender butinstead relegate the parties to seek damages for the[9] WP-1903-2023.odtwrongful exclusion rather than to injunct the execution ofthe contract. The injunction or interference in the tenderleads to additional costs on the state and is also againstpublic interest. Therefore, the State and its citizens suffertwice, firstly by paying escalation costs and secondly, bybeing deprived of the infrastructure for which they present-day Governments are expected to work.”11.Taking into consideration all these facts, we do not find thatthere is any error or illegality committed by the competent authority todisqualify the petitioner. No case is made out for exercising theconstitutional powers of this Court under Article 226 of theConstitution of India.12.The Writ Petition stands dismissed.13.Rule is discharged.[ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[10]