High Court
Legal Reasoning
WP-7085-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.7085 OF 2023R. K. Infraconstro Pvt. Ltd.Through its Authorised Signatory,Shubham s/o Madhav Thakre,Age: 26 years, Occu.: Contractor,R/o. Kaij Sangvi, Soni Sangvi, Nashik, District Nashik... PETITIONERVERSUS1.The State of MaharashtraThrough the Principal Secretary,Rural Development Department,Mantralaya, Mumbai-32.2.The Accountant (Gr.C.),PMGSY, MRRDA, Nandurbar,Dist. Nandurbar.3.The Executive Engineer,PMGSY, MRRDA, Nandurbar,Dist. Nandurbar.4.The accountant (Gr.B.)PMGSY, MRRDA, Nashik Circle,Nashik, Dist. Nashik;5.The Deputy Engineer,PMGSY, MRRDA, Nashik Circle,Nashik, Dist. Nashik;6.The Superintending Engineer,PMGSY, MRRDA, Nashik Circle,Nashik, Dist. Nashik.7.Shantaram Sahebrao Patil,R/o. Ambika Colony, Tq. Nandurbar,District Nandurbar.8.Dashrath Vikram Patil,R/o.Shanti Nagar, Near Wagheshwari,[1]
Legal Reasoning
WP-7085-2023.odtNandurbar, District Nandurbar.9.M/s. Girija ConstructionThrough its Proprietor,Avinash Shankarrao More,Age: 39 years, Occu.: Business,R/o. Vardhaman Nagar, Nandurbar,District Nandurbar. .. RESPONDENTS……….Ms. Pradnya S. Talekar i/b Talekar and Associates, Advocate forpetitioner.Mr. N. S. Tekale, AGP for respondent Nos.1 to 6.Mr. R. S. Deshmukh, Senior Counsel i/b Mr. A. R. Joshi, Advocate forrespondent No.7.Mr. B. I. Mahajan, Advocate for respondent Nos.8 and 9.………. CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.DATE : JANUARY 15, 2024. JUDGMENT (Per Smt. Justice Vibha Kankanwadi, J.) :- .Rule. Rule made returnable forthwith. Heard learnedCounsel for the appearing parties finally by consent.2.The petitioner challenges its disqualification rejecting thetechnical bid submitted by the petitioner by quashing the technicalscrutiny checklist as well as minutes of meeting of technical evaluationcommittee dated 19.06.2023 and by way of amendment prayer hasbeen made to quash the work order dated 23.11.2023 issued by therespondents in favour of respondent No.7.3.The factual matrix leading to the petition are that thepetitioner - Company had taken part in the tender floated by[2] WP-7085-2023.odtSuperintending Engineer, Pradhan Mantri Gram Sadak Yojana(PMGSY), Nashik Region, Nashik for total 13 works in approximately112 kms. length in District Nandurbar. The petitioner contends that itis a seasoned Government contractor and has successfully completedworks in several road development projects. There were in all fourbidders and the scrutiny of those bids was undertaken on 19.06.2023.From the checklist it appears that the petitioner was found qualified onall counts, however, in the second last row concerning ‘materialdeviation omission or reservation found’, it was marked as YES, still hisbid was not held to be qualified. Upon the inquiry, it was observed bythe scrutiny committee that there were shortfalls with the bidder i.e.the petitioner and a separate chart regarding the same has been givenmainly in respect of that the petitioner has not completed the previousprojects. In fact, various government resolutions have been issueddirecting scrutiny authorities not to reject the bids on hyper technicalgrounds and if there is any shortfall in documents, then the biddershall be permitted to cure it by granting reasonable time. There wasno mandatory condition in the present bid which was not compliedwith by the petitioner. The petitioner has been disqualified on thethree grounds i.e. (i) he has not submitted statement that there wasany pending litigation or arbitration, (ii) similar works not completedand (iii) the bank certificate was not in the format. In fact, thestatement was made by the petitioner and also submitted undertaking[3] WP-7085-2023.odtstating that there is no litigation pending or arbitration proceedingspending. The bank certificate was given and it ought not to have beeninsisted that it should not have been in a particular format. Whateverwas appended to the tender notice was the sample format and if at allthe respondent was so keen on getting the certificate in a particularformat, time could have been given to the petitioner to submit it informat. As regards the completion of the three works under MukhyaMantri Gram Sadak Yojana, the petitioner could have shown that infact those three works are completed. Only on the basis of somecomplaint or information it appears that such action is taken. Thepetitioner has been wrongly disqualified and it appears to be with malafide intention to give the work to a particular person. Though duringthe pendency of the petition work order has been issued, yet thisCourt by order dated 28.06.2023 had issued interim order that therespondent should not open the financial bid and not to proceedfurther until the returnable date and therefore, the petitioner prays forthe reliefs. 4.Affidavit-in-reply of Kavita Vinayak Deore, the ExecutiveEngineer, Pradhan Mantri Gram Sadak Yojana, Nandurbar has beenfiled on behalf of respondent Nos.1 to 6. It has been contended thatthe scrutiny committee held meeting on 19.06.2023 and prior to thatthe technical bid was opened on 15.05.2023. Two deficiencies were[4] WP-7085-2023.odtfound in the bid submitted by the petitioner. The first deficiency wasin respect of bank certificate of liquid, assets or credit facilities is notin format and the second deficiency was in respect of litigation and/orarbitration proceedings. As regards the third evaluated defect isconcerned three similar works were allotted to the petitioner in tribalarea. One was in the year 2015-2016 and two others were in 2016-2017, however, the work is not yet complete. The performance of thepetitioner was found to be very poor. The present project was alsofrom the tribal area. Despite granting extensions, the petitioner couldnot complete those three works. The work was in the public interestat large and, therefore, the petitioner has been held to be notqualified.5.One Shantaram Sahebrao Patil – respondent No.7 has filedaffidavit-in-reply. In order to cut short, it can be said that he hasstated as to how he has qualified and he was not made party in theinitial stage. He came to be made party later on and in the meantime,the work order came to be issued. He has started the work and hasalso furnished performance security deposit worth Rs.38,59,000/- videletter dated 09.11.2023. He, therefore, prayed for dismissal of thepetition.6.Heard learned Advocate Ms. Pradnya S. Talekar instructedby Talekar and Associates for the petitioner, learned AGP Mr. N. S.[5] WP-7085-2023.odtTekale for respondent Nos.1 to 6, learned Senior Counsel Mr. R. S.Deshmukh instructed by learned Advocate Mr. A. R. Joshi forrespondent No.7 and learned Advocate Mr. B. I. Mahajan forrespondent Nos.8 and 9.7.It has been vehemently submitted on behalf of thepetitioner that after the petition was filed, this Court by order dated28.06.2023 had directed the respondents not to open the financialbids. Unfortunately, the office objections were not removed by thepetitioner and in the meantime, by order dated 28.07.2023, aconditional order came to be passed that the office objections shouldbe removed within four weeks failing which the matter would standdismissed automatically without further reference to the Court. Thesaid order went unnoticed and, therefore, it was treated that thepresent petition has been dismissed. Thereafter, the petitioner hadundertaken the exercise of filing application for restoration along withcondonation of delay application. The delay was condoned. Petitionwas restored. By order dated 10.11.2023, this Court after taking noteof all the aspects, observed that any work order issued pursuant to thetender in question shall be subject to the final outcome of the petition.Thereafter, the amendment was carried out, when a statement wasmade by learned AGP that the work order has already been issued on23.11.2023. The subsequent events does not take away the right of[6] WP-7085-2023.odtthe present petitioner to contest the matter and show that he waseligible and has wrongly been thrown away in the technical bid.Learned Advocate for the petitioner then reiterated the pleadings aspart of her submissions and taken us through the record thatundertaking, in respect of no litigation pending as well as arbitrationproceedings pending, was given by the petitioner. She tried todemonstrate as to how the certificate of the bank could not have beeninsisted upon a particular format and if it was not in a particularformat, how the respondents could have gone liberally and allowed thepetitioner to submit a certificate under the requisite format. LearnedAdvocate for the petitioner also submitted that as regards the earlierwork details are concerned, it cannot be taken as a compulsory ormandatory information, as there was no column to show that the saidprevious work is pending and the reasons for the pendency of theprojects could have been explained by the petitioner. Properopportunity was not given by adhering to the principles of naturaljustice. Further, the act on the part of respondent Nos.1 to 6 is clearlyarbitrary. Those factors have been considered which were notmandatory to disqualify a person and, therefore, the writ jurisdictioncan be exercised.8.Learned Advocate for the petitioner relied on the decisionin Reliance Energy Ltd. and Another Vs. Maharashtra State RoadDevelopment Corpn. Ltd. And Others, [(2007) 8 SCC 1]. She relied on[7] WP-7085-2023.odtparagraph No.36 of the said judgment and submitted that when Article19(1)(g) of the Constitution of India confers fundamental right to carryon business to a company, then it is entitled to invoke the saiddoctrine of “level playing field”. The said doctrine provides space withinwhich equally placed competitors are allowed to bid so as to subservethe larger public interest. She further relied on the decision in JaiBholenath Construction Vs. The Chief Executive Officer, Zilla Parishad,Nanded and Ors., passed by the Hon’ble Supreme Court in Civil AppealNo.4140 of 2022 [@ Special Leave Petition (C) No.7150 of 2022] on18.05.2022, wherein note was taken on the decision in M/s. N. G.Projects Ltd. Vs. M/s. Vinod Kumar Jain, reported in [2022 (5) SCALE105], but it was then found that this Court had misread the judgmentof the Apex Court. Respondent No.4 therein was declared eligible in aflagrant violation of principles of natural justice and all fairness in theprocess of determining the eligibility of the tenderers. The bid ofrespondent No.4 was accepted when at the time of opening oftechnical bids, the said respondent was disqualified. The order passedby this Court was set aside and the respondent – Zilla Parishad wasdirected to process the matter further from the stage prior to issuanceof corrigendum dated 24.11.2021. She prayed that similar relief needsto be given in this case.9.Learned AGP reiterated the same facts, which have beengiven in the affidavit-in-reply and mainly submitted that the bidders[8] WP-7085-2023.odtwere directed to give information regarding the previous work with anintention that their performance in those earlier bids or works allottedcan be considered while allotting the fresh work. Though the earlierthree bids were given long back, the petitioner could not complete thesame even after the extension was given for its compliance. Thepresent project is also in the tribal area. The basic purpose for workwas to develop the said area. Therefore, in the public interest also thepetitioner has been disqualified. 10.Learned Senior Counsel instructed by learned Advocate Mr.A. R. Joshi for respondent No.7 has taken objection on the eligibility ofthe authorized signatory, who has filed the petition on behalf of thepetitioner – Company. He submitted that resolution by the Companywas not filed in the petition and a statement has been made by thelearned Senior Counsel that the said authorized signatory is partypetitioner in the capacity of authorized signatory for other persons alsoin similar matters i.e. wherein its disqualification of those petitioners inthe technical bid is under challenge. He, therefore, submits that thepetition is not filed with bona fide intention. It is then reiterated thatrespondent No.7 was held to be qualified on all counts. Now, the workorder has been issued. 15% work has been completed and the bill isalso submitted. The performance security deposit has also been paid.Under the said circumstance, for the reasons which petitioner wants to[9] WP-7085-2023.odtcanvass and with the help of a person who is said to be an authorizedsignatory, the constitutional powers cannot be used. Learned AGP aswell as learned Senior Counsel for respondent No.7 relied on decisionin M/s. N. G. Projects Limited Vs. Vinod Kumar Jain, [2022 (6) SCC127].11.Since the maintainability of the petition is also raised, wewould like to deal with that objection first. The petitioner appears tobe a private limited company and it is said that the petition is filedthrough its authorized signatory. In the entire body of the petition, aclear statement has not been made that the petitioner is a privatelimited company, but the name of the petitioner suggests the same. Aprivate limited company, which is a registered one, has its own entityand, therefore, it is hard to accept that there can be an authorizedsignatory to the company, who is not holding any post in the company.Paragraph No.1 of the petition states that the petitioner company hasexecuted a Power of Attorney to grant the signing authority for thepresent petition and the other documents concerning this litigation toShubham Madhav Thakre. When a specific question was then put tothe learned Advocate for the petitioner, photocopy of the Power ofAttorney has been tendered across the bar. Perusal of the said Powerof Attorney would show that it has been executed by the Director ofCompany in favour of the said authorized signatory. The execution of[10] WP-7085-2023.odtsuch document cannot be accepted when it is a company. Certainlyany act done by the company should be through a resolution to bepassed by the requisite directors. Further, there is no reason as to whythe Power of Attorney has been given. That may not be a much pointfor deliberation. Still, the Power of Attorney, in the fashion it isexecuted, cannot be said to be a legal document and, therefore, thepetition should fail on this count itself. 12.Even if for the sake of arguments we keep the first pointaside, we are then required to consider the issue raised in the petition.Now, the petitioner wants to canvass two points, first is the wrong oralleged illegal disqualification of the petitioner from the technical bidand second is the outcome of amendment that the work order issuedin favour of respondent No.7 after holding that respondent No.7 issuccessful in the bid. We will have to take into consideration thesubsequent events. Now, 15% work is over after the work order wasissued. Even the security deposit in the lakhs of rupees has beendeposited, then whether at this stage, the Court should interfere ornot would be a question. Definitely, by order dated 28.06.2023 whena statement was made that the financial bid is not yet opened, thisCourt had directed original respondent Nos.1 to 6 not to open thefinancial bid and not to proceed further until the returnable date of thematter. The returnable date was 27.07.2023. Further, it was also[11] WP-7085-2023.odtstated in the order that all the office objections should be removedwithin three weeks and copies for serving notices on the unservedrespondents shall be tendered within five days. In fact, by same orderdated 28.06.2023, leave was granted to add three bidders who wereheld to be qualified in the scrutiny process on 19.06.2023. It appearsthat the amendment was carried out in the Court itself, but the officeobjections were not removed. Thereafter, on 28.07.2023 a commonorder came to be passed that all the petitioners should remove theoffice objections within a period of four weeks. It was a conditionalorder that in case of failure to remove the office objections, thepetition would stand dismissed without further reference to the Court.Now, it has been submitted that the order was not uploadedimmediately and, therefore, it could not be noticed by the petitioner.It can be seen from the order that the matter of the petitioner was atSerial No.986 on the board. Therefore, it is the bounden duty of thepetitioner to see what has happened in the matter. Further, even byorder dated 28.07.2023, four weeks time was given for removal ofoffice objections, still it appears that the office objections were notremoved and, therefore, the effect of conditional order took place andit was treated that the petition stood dismissed automatically uponnon compliance. That means, the interim order that was passed on28.06.2023 was not in existence upon the conditional dismissal of thepetition. Thereafter, by Civil Application No.13586 of 2023, the interim[12] WP-7085-2023.odtorder came to be passed on 10.11.2023, wherein it was stated thatany work order issued pursuant to the tender in question shall besubject to the final outcome of the writ petition. The matter came tobe restored. From all these facts, it can be seen that respondentNos.1 to 6 or even respondent No.7 cannot be blamed for taking upsteps for issuing work order and for starting the work in accordancewith the work order. Therefore, unless it is now pointed out that theentire exercise of allotting the work to respondent No.7 is tainted withmala fides, this Court cannot interfere in the matter. 13.As regards the objections are concerned, they were threein numbers, (i) bank certificate, (ii) litigation/arbitration proceedingspending, undertaking or statement and (iii) regarding incompleteprevious work by the petitioner under MMGSY. We may not give muchimportance to the first two objections, as it could have been got curedby respondent Nos.3 to 6 and it cannot be said that non compliance ofthe same was inherent defect. 14.As regards the third ground on which the petitioner hasbeen disqualified, it has been tried to be stated that the said previouswork was under different scheme and, therefore, if any incompletework is there, it could not have been considered in another scheme.The present tender process was under the Pradhan Mantri Gram SadakYojana. The three previous incomplete work are said to be under[13] WP-7085-2023.odtMukhyamantri Gram Sadak Yojna. But the fact then remains is that itwas to be completed almost by the same authorities. Further, in thetender notice itself, it is made clear that the Superintending Engineer,Pradhan Mantri Gram Sadak Yojana was inviting bids for theimprovement and five year maintenance of rural roads in Nandeddistrict under Mukhyamantri Gram Sadak Yojana, so it had connectionand, therefore, the previous incomplete work could have been takennote of by the scrutiny committee in the present bid. The chart showsthat one work was given in 2015-2016 and two other works in 2016-2017 and the status is not yet complete. Petitioner has not produceddocuments to show that when those works are now complete. Thoseworks would have been completed prior to the last date of submissionof bid in the present case.15.It is not in dispute that major part of Nandurbar district isa tribal area and if development project like construction or road isundertaken by way of such tender process, then it was expected thatit should be completed within the prescribed time. The project was ofpublic interest and, therefore, not allotting or holding the petitioner asnot eligible at the technical bid in the interest of public cannot be nowquestioned. Even in Reliance Energy Ltd. And Another (Supra), inparagraph No.36 itself, it has been observed that the doctrine of levelplaying field is subject to public interest. In M/s. N. G. Projects[14] WP-7085-2023.odt(Supra), the Hon’ble Supreme Court has observed that :-“21.Since the construction of road is aninfrastructure project and keeping in view the intent ofthe legislature that infrastructure projects should not bestayed, the High Court would have been well advised tohold its hand to stay the construction of theinfrastructure project. Such provision should be kept inview even by the Writ Court while exercising itsjurisdiction under Article 226 of the Constitution ofIndia.”16.Therefore, we are of the opinion that no case is made outfor exercising constitutional powers of this Court under Article 226 ofthe Constitution of India. 17.The Writ Petition stands dismissed.18.Rule is discharged. [ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[15]