High Court

Legal Reasoning

1 WP/ 5091 /2025 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 5091 OF 2025Rishu Kishu Industries Pvt. Ltd.,Through its Director,Sanjay Manikrao ThoratAge : 54 years, Occu : Director,R/o : Sai Sadan, Shankar Parvati Nagar,Parali – V, Tal. Parali – V. Dist. Beed.. Petitioner Versus1] Parali Municipal Council, Parali (V) Tal. Parali (V), Dist. Beed2] The Chief Officer, Parali Nagar Parishad, Parali (V), Tal. Parali (V), Dist. Beed3] The Engineer [Civil], Parali Nagar Parishad, Parali (V), Tal. Parali (V), Dist. Beed4] Consultant Project Director, Parali Nagar Parishad, Parali (V), Tal. Parali (V), Dist. Beed.. Respondents ...Senior Advocate for petitioner : Mr. N.B. Khandare i/by Mr. M.V. NagargojeAdvocate for respondents no. 1 and 2 : Mr. Vivek Bhavthankar... CORAM : MANGESH S. PATIL & Y. G. KHOBRAGADE, JJ.DATE : 21 APRIL 2025ORDER (MANGESH S. PATIL, J.) :Heard learned senior counsel Mr. Khandare for thepetitioner, learned advocate Mr. Bhavthankar, who appears suo motu 2 WP/ 5091 /2025 for respondents no. 1 and 2 and also tenders across the bar theiraffidavit-in-reply. 2.The petitioner is seeking following prayers:-“(A) This Hon’ble Court may kindly be pleased to issue anyappropriate writ, order or direction in the nature of writ,and thereby quash and set aside the impugned tendernotice No. 2025_DMA_1164763_1 for proposedconstruction of retaining wall part A and B on water stormdrainage within city limits of Parali V dist. Beed dated25.03.2025 to the extent of city area.(B) This Hon’ble Court may kindly be pleased to issue writ ofmandamus or writ or order in the nature of writ, andthereby to direct the respondent tendering authority toissue fresh tender notice after modify minimum qualifyingrequirement i.e. city area inserted in tender condition.3.Mr. Khandare would submit that without having any nexuswith the object to be achieved while undertaking construction of aretaining wall pursuant to the tender notice no. 2025_DMA_1164763_1dated 25.03.2025, a stipulation has been incorporated in the tenderdocument requiring previous experience of a similar type of work butexecuted in ‘city area’. He would submit that there is no point andrationale in providing such qualification. It is merely a matter ofconstruction of a retaining wall which, even a normal contractorengaged in the business, could easily be able to do. He submits thatthe petitioner had participated in the pre-bid meeting held on08.04.2025, however, his objection to delete this condition /qualification was turned down and the process was taken further 3 WP/ 5091 /2025 arbitrarily and with the objective of preventing the petitioner fromparticipation in the tender process. The stipulation is prompted bypolitical pressure and at the instance of a local MLA interested inallotment of the tender work to a particular contractor. He would submitthat since it is a matter of public work to be undertaken by a publicbody, there has to be a fair play. It is being designedly sought to becircumvented by laying down such unprecedented condition of havingexperience of doing a similar type of work in ‘city area’.4.Learned advocate Mr. Bhavthankar for respondent nos. 1and 2, by referring to the affidavit-in-reply, would submit that the reasonfor providing the stipulation has been expressly explained. Since it is awork of construction of a retaining wall over a nallah passing throughParali town, retention wall running into 845 Square Meters having 15Meter width, a bidder who does not have experience to carry out suchconstruction in the midst of the town where there is likelihood ofobstruction being caused to the traffic during the period of construction,the condition was put in regard to the previous experience. It has beenput to reduce the period of construction and which can happen only if abidder has capacity to discharge such work in similarly busy area.He would submit that it is a policy matter and cannot be subjected toany judicial scrutiny. The allegations of bias and political pressure arevague and omnibus. The petitioner had not submitted any bid. Last 4 WP/ 5091 /2025 date for submission of the bid is already over on 19th and the petitioner,without participation in the tender process, cannot be heard regardingsustainability of a stipulation in the tender document.5.To repel the submissions of the learned advocateMr. Bhavthankar, Mr. Khandare would refer to the decision in the matterof Ramana Dayaram Shetty V. International Airport Authority ofIndia and others; (1979) 3 SCC 489.6.We have considered the rival submissions and perusedthe papers.7.As far as right of a prospective bidder to raise objection tothe conditions in the tender document / notice is concerned, in the lightof Ramana Shetty (supra), it is trite that even before actualparticipation in the tender process, a person has a right to object to acondition in the tender notice. For, if he participates with the conditionwithout any demur and seeks to put up a challenge after participation,his claim against rejection would be met with an argument that he hadparticipated in the tender process with open eyes without raisingobjection to the conditions and cannot be heard.8.However, the decision in the matter of Ramana Shetty(supra) will not come to the rescue of the petitioner, for the reason thatthe tender notice was issued on 25.03.2025, the pre-bid meeting was 5 WP/ 5091 /2025 to be held on 08.04.2025 albeit it was held on some other day, thepetitioner had raised the query during that pre-bid meeting. It wasconsidered after hearing him and still the decision was taken byrespondent nos. 1 and 2 to maintain the condition of having experienceof a similar work discharged in ‘city area’. The minutes of the pre-bidmeeting were recorded on 11.04.2025 and the last date for submissionof the bids was 19.04.2025.9.Though the petition was filed on 15.04.2025, the papershave been circulated before us today. There is nothing on the record todemonstrate that any circulation praecipe was moved particularly,seeking any early hearing, may be prior to the last date for submissionof the bid on 19.04.2025. The situation today is to the effect that thelast date for submission of the bids is already over and the petitionercannot participate in the process hereafter. Even if now he is allowedto object and question the condition, regarding previous experience,the bidders who have already submitted their bids being not partiesbefore us, the petition cannot be entertained on this ground.10.Even if, as submitted by Mr. Khandare, the petitioner isready to add all the bidders as party respondents, the fact remains thatin spite of having the time, the petitioner has failed to obtain even firstorder when he had some time left to put up a bid within the time. 6 WP/ 5091 /2025 11.It is in the light of the afore-mentioned state-of-affairs, weput up a query to Mr. Khandare, as to what had prevented thepetitioner from participating in the tender process, on instructions, hewould respond that the petitioner was not having necessary documentsto put up his bid in time. If this is the case, when the petitioner admitsthe fact that irrespective of the tender condition under challenge, hewas not eligible to submit his bid for lack of documents, in ourconsidered view, he cannot take shelter of the decision in the matter ofRamana Shetty (supra).12.So far as the allegations regarding bias and mala fides areconcerned, the averments in the petition are vague and omnibus.Except alleging that a local MLA is interested in allotment of work to aparticular contractor and in order to exclude the petitioner deliberately,the impugned condition has been put, in our considered view, cannotbe heard for lack of material particulars. Certainly, the averments arevague and omnibus. It does not mention as to how when there wouldbe number of bidders, the local MLA would be able to procure thecontract for the person he is interested in. Again, neither the MLA northe contractor, he is alleged to be interested in, have been named oreven made parties.13.It is trite that the parameters for this Court to exercise thepowers under Article 226 of the Constitution of India in tender matters 7 WP/ 5091 /2025 have been circumscribed time and again, the latest being Tata MotorsLtd. v. BEST and Ors.; AIR 2023 SC 2717.14.We find no merit in the petition. It is dismissed. [ Y. G. KHOBRAGADE ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/