High Court · 2024
Legal Reasoning
wp-3114.247mentioned in Condition No.13, therefore, cannot be considered.The only document which required consideration was thedocument dated 10th January 2024 issued by the Deputy DistrictElection Officer, Solapur. The said certificate showed that thepetitioner had carried out the work of tent, furniture and otherancillary work in respect of tent and furniture. According to him,the said certificate is not helpful to the petitioner. He furtherstates that since all the three E-tenderers of the tender issuedthird time were also not qualified, the Deputy District ElectionOfficer issued a letter dated 13th March 2024 to the DeputyDistrict Election Officer of District Dharashiv, Parbhani, Nandedand Beed which are adjacent districts to Latur District and askedthem to inform, whether participants of their E-tender processhad been qualified and whether they are ready to work in LaturDistrict. He relies on the decision of this Court in Writ PetitionNo. 7006 of 2023 decided at Nagpur Bench on 17th October 2023in Minakshi Traders vs. State of Maharashtra and others, as wellas the Judgments of the Hon’ble Apex Court to support hisstatement that there is no fundamental right available to anytenderer to do business with the Government, what is to sayabout business with Government on their own conditions. wp-3114.2487.As aforesaid, learned Advocate for the petitioner as well asthe contents of the Petition would clearly show that thepetitioner is not challenging any term or condition of the E-tender. The petitioner wants to say that the said Condition No.13of the tender notice has been misread by the respondents andthe committee. Therefore, it is necessary to reproduce ConditionNo.13 of the tender notice, which reads thus:-“13-fufonk /kkjd ;kauh fnukad 30-10-2023 P;k vxksnj 7 o”kkZi;Zardks.kR;kgh ,dk o”khZ dks.krsgh ,d yksdlHkk @ fo/kkulHkk fuoM.kwd fo”k;d dkegs lnj fufonsr uewn vankthr jdesP;k 60 VDds brD;k jdesps dke dsysvlY;kckcrps l{ke izkf/kdkjh ;kaps izek.ki= vl.ks vko’;d vkgs-”The translation of the above said Condition No.13 is as under:-“13.Tender holder must have a certificate from theCompetent Authority that any Lok Sabha / VidhanSabha election related work has been done (by him)for 60% of the estimated amount mentioned in thetender in any one year up to 7 years prior to31.10.2023.” (Translated by Senior Translator and Interpreter High Court of Bombay, Bench at Aurangabad)8.Thus, perusal of Condition No.13 of the tender documentwould clearly show that what was expected from the tenderer wp-3114.249was the work in respect of any Lok Sabha / Vidhan Sabhaelection within seven years prior to 30th October 2023. The valueof the such work done should be 60% of the estimated work inthe present tender and such certificate should be issued by thecompetent authority. The said Condition does not specifically saythat the work that is expected is inclusive of electric appliancesand related work. If respondent No.1 wanted particular work toinclude in Condition No.13 and it should not have been restrictedonly to tent and furniture work, then it ought to have been sospecified in the condition. 9.Interesting point to be noted is that while rejecting thetechnical bid of the petitioner and also in the affidavit-in-reply,the respondents are not saying that there was no compliance ofCondition No.9 of the tender document, which is in respect ofsupply of electric appliances etc. on rent, and the same readsthus:-“;kiwohZ >kysY;k yksdlHkk@fo/kkulHkk lkoZf=d fuoM.kqdhP;k osGh fo|qr tksM.kh]/ouh{ksid ;a=.kk o brj vuq”kafxd lkfgR; HkkMs rRokoj fdeku 01 ¼,d½ftYg~;kyk iqjoBk dsY;kckcr l{ke izkf/kdkjh ;kaps Lok{kjhps vuqHko izek.ki=tksM.ks vko’;d vkgs-” wp-3114.241010.It can be seen from the other documents that thepetitioner is having license of electric contractor. UdyamRegistration Certificate of the petitioner states that the petitioneris entitled for the services of renting of tent, furniture, potteryand glass, kitchen and tableware, utensils, household electricaland electronic equipments etc. The petitioner has also producedon record the work orders issued to him in 2019 GeneralElections at various places, but we are concerned with thecertificates and therefore the work orders are required to beread along with the certificate. The Deputy District ElectionOfficer has issued the said certificate dated 10th January 2024 forcompletion of the work of the said work order, thereby indicatingthat in respect of providing tent and furniture, the petitioner hascompleted the work. Again reverting back to Condition No.13 ofthe tender document, as aforesaid, we are not concerned withelectric or any other article but we are concerned with only theelection related work, whereas Condition No.9 does not stipulateany duration in which the petitioner or any tenderer would havesupplied the electric appliances, speakers etc. Therefore, thedisqualification of the petitioner for the grounds mentioned in theminutes of the meeting dated 28th February 2024 and orderdated 1st March 2024 as regards the petitioner is concerned, on wp-3114.2411the count of non fulfilling of Condition No.13 is illogical andillegal. The tendering authority cannot add or delete any part ofthe condition or condition itself. Plain and literal meaning to theconditions as those are, is required to be given. 11.The reliance of the respondents on the decision in MinakshiTraders vs. State of Maharashtra and others (supra) appears tobe misconceived. The facts were total different and there waschallenge to the conditions of the tender document. We areaware that in Afcons Infrastructure Limited vs. Nagpur MetroRail Corporation Limited and another, (2016) 16 SCC 818, theHon’ble Supreme Court has held that it is possible that theowner or employer of a project may give an interpretation to thetender documents that is not acceptable to the constitutionalcourts but that by itself is not a reason for interfering with theinterpretation given. We are also taking note of the decision ofthe Hon’ble Apex Court in Agmatel India Private Limited vs.Resoursys Telecom and others, (2022) 5 SCC 363, wherein it hasbeen held that the author of the tender document is taken to bethe best person to understand and appreciate its requirements.However, we are not giving any another interpretation to thetender conditions, but we are considering the fact that the wp-3114.2412tendering authority has tried to interpret the simple words inCondition No.13 of the tender document in a wrong way. Furtherit can also be so demonstrated that the condition was the sameat the time of first round of tender and at that time the sameauthority had held that the petitioner is qualified, however,unfortunately the petitioner was the only successful technicalbidder at that time and therefore, it was re-tendered. This fact isalso admitted in the affidavit-in-reply. 12.We are also taking note of the decision in Jagdish Mangalvs. State of Orissa, (2007) 14 SCC 517, Galaxy TransportAgencies, Contractors, Traders, Transports and Suppliers vs.New J.K. Roadways, Fleet Owners and Transport Contractors andothers, 2021 (16) SCC 808, N.J. Projects Ltd. vs. Vinod KumarJain and others, (2022) 6 SCC 127, Tata Motors Ltd. vs. BrihanMumbai Electric Supply and Transport Undertaking (BEST) andothers, 2023 SCC OnLine SC 671, regarding the limitations inrespect of judicial review of administrative action. The presentadministrative action on the part of the respondents inmisinterpreting its own condition, adding something which wasnot contemplated or in the mind of the public who would haveparticipated in the tender process and declaring the petitioner as
Arguments
wp-3114.241 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.3114 OF 2024Jawahar Speakers and Mandap Contractor,Through its Proprietor,Shri Datta Vishvambharrao Bhosle,Age-58 years, Occu:Proprietor,R/o-Shiv Chhatrapati Nagar, Hudco Colony,Shree Shetra, Tuljapur – 413 601,District-Dharashiv. ...PETITIONER VERSUS 1) The District Collector, Latur and / or District Election Officer, Latur,2) Additional District Election Officer, Latur. ...RESPONDENTS ... Mr. Dnyaneshwar S. Bagul Advocate for Petitioner. Mr. S.J. Salgare, A.G.P. for Respondent Nos. 1 and 2. ... CORAM: SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ.DATE OF RESERVING JUDGMENT : 27th MARCH 2024DATE OF PRONOUNCING JUDGMENT : 3rd APRIL 2024 wp-3114.242JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :1.Rule. Rule made returnable forthwith. Heard learnedcounsel appearing for the respective parties finally, by consent.2.By present Writ Petition, the petitioner seeks to invoke theconstitutional powers of this Court under Article 226 of theConstitution of India to challenge the order dated 28th February2024 passed by respondent No.1 refusing to open the financialbid of the petitioner and seeks directions to respondent No.1 toissue work order in favour of the petitioner and furtherrestraining the respondents from taking further steps includingpublication of fresh tender pursuant to the impugned order dated28th February 2024.3.It is the case of the petitioner that respondent No.1 floatedtender bearing No. 10 of 2023 on 6th December 2023 for supplyof electrical appliances, sound systems and other necessaryitems on rent basis for conducting the ensuing elections of LokSabha / Vidhan Sabha General Elections 2024. The tender waspublished on 7th December 2023 and last date for submission oftender was 22nd December 2023 up-to 6.00 p.m. The petitionerparticipated in the said tender process and paid requisite EMD wp-3114.243amount. The tenders submitted by the petitioner and othertenderers were opened on 26th December 2023. In all seventenderers had participated at that time. Out of them six weredeclared ineligible and the petitioner was only declared aseligible. As petitioner was the single eligible tenderer, the saidtender notice was cancelled by respondent No.1 and a freshsecond tender notice was published on 23rd January 2024. Thelast date for submission of said tender was 30th January 2024and the technical envelope was to be opened on 1st February2024. The petitioner again participated in the said tenderprocess, uploaded the document and paid the requisite EMDamount. In all four tenderers had participated this time andrespondent No.1 opened the technical envelope on 1st February2024 and declared all the tenderers including the petitioner, asineligible. The petitioner contends that though he had submittedthe requisite experience certificate to the tune of 60% of thetender document as per Condition No.13 of the tender notice,yet the petitioner has been declared as ineligible. In the earlierround, the petitioner was held to be eligible on the basis of thesame document. This shows mala fides on the part of therespondent authorities. wp-3114.2444.The petitioner has come with the case that since all thefour tenderers were declared as ineligible, respondent No.1 againissued fresh tender on 20th February 2024 i.e. third time. Thetender was published on 21st February 2024 and last date forsubmission of tender was 27th February 2024. Technical envelopewas to be opened on 28th February 2024. The petitioner hadagain participated in the process by submitting documents aswell as paying requisite tender fees. Now, in all three tenderershad participated including the petitioner. Again respondent No.1had declared all the tenderers as ineligible. Now the ground ofrejection of the petitioner’s bid was that he has not submittedthe requisite certificate issued by the competent authorityindicating 60% of completion of work during any one yearelection of Lok Sabha / Vidhan Sabha of last preceding 7 years.It was stated by the authorities that the petitioner has uploadedthe certificate dated 10th January 2024 issued by the DeputyReturning Officer, Solapur, which is of supply of Mandap (tent)and furniture articles and not of the electrical work done by thepetitioner. The respondent authorities could not have rejectedthe bid presented by the petitioner i.e. especially the certificatetaking into consideration Condition No.13 of the tenderdocument. The petitioner has contended that the respondent wp-3114.245authorities have acted deliberately and rejected his technical bidjust to accommodate the contractor of their choice and thereforethe petitioner has filed the present Writ Petition with the prayersstated herein above. 5.Learned Advocate Mr. Bagul appearing for the petitionerhad taken us through the documents produced on behalf of thepetitioner. He submits that the petitioner had taken part in thework of election process at various places and certificates havebeen issued to that effect. Learned Advocate for the petitionerhas specifically relied upon the certificate issued by the DeputyDistrict Election Officer, Solapur dated 10th January 2024 statingthat the petitioner has supplied tent, furniture and other articleson rent. The value of the work done has also been mentioned inthe said certificate. He submits that Condition No.13 of thetender document does not specify that supply of electric itemsand carrying out electric work was specific feature. The literaltranslation of Condition No.13 would show that the bidder oughtto have completed the work up to 60% of the tender value inany Lok Sabha / Vidhan Sabha election in any of the yearpreceding seven years to 30th October 2023. It was wrong on thepart of the respondent authorities to say that there was no wp-3114.246certificate produced by the petitioner to fulfill Condition No.13 ofthe tender document. The respondent authorities say that thecertificate is in respect of providing tent and furniture. Thedisqualification therefore, is arbitrary. Learned Advocate for thepetitioner specifically states that from the affidavit-in-reply onbehalf of the respondents it can be gathered that they are underwrong impression that the petitioner is challenging the termsand conditions after participating in the tender process. In factthe petitioner is not challenging any of the condition of thetender document. What petitioner is challenging is the wronginterpretation that has been done. When same document wasearlier produced, at that time the petitioner was held to beeligible by the same authority. When there is total arbitrariness,the judicial review of the rejection of the tender is necessary. 6.Per contra, the learned AGP relies on the affidavit-in-replyfiled by Pankaj Bhagwat Mandade, Nayab Tahsildar (Election) atCollector Office, Latur. Though he has filed a long affidavit-in-reply, we are concerned with the issue involved. In Para No.9 hehas given the list of the certificates annexed by the petitioneralong with the bid, which are in respect of year 2011 and 2015and submitted that as those are not fulfilling the criteria
Decision
wp-3114.2413eligible at the first time and rejecting his technical bid at thelater point of time in the third round by putting suchinterpretation, amounts to irrational, unreasonable, tainted withmala fide, we are of the opinion that interference is requiredunder Article 226 of the Constitution of India. Hence followingorder is passed:- O R D E R(I)The Writ Petition stands allowed.(II)We quash and set aside the impugned orderdated 1st March 2024, which is the result of resolutionin the meeting of the technical committee on 28thFebruary 2024.(III)We direct respondent No.1 to open the financialbid of the petitioner and to examine it under thepolicies prevailing presently and to take up the decisionin respect of issuance of work order in favour of thepetitioner.(IV)The entire exercise to be done within a period oftwo weeks from today. Respondent No.1 to wp-3114.2414communicate the decision taken to the petitionerimmediately.(V)The respondents are restrained from taking anyfurther steps including publication of fresh tender inpursuance to the impugned order dated 1st March 2024and letter dated 13th March 2024, issued by the DeputyDistrict Election Officer, Latur, for a period of one weekafter the communication of the decision to thepetitioner.(VI)Rule is made absolute in above terms. [S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/MAR24