Writ Petition No. 5947 of 2024 · Bombaybench High Court
Case Details
2025:BHC-AUG:13827-DB 1053.WP.5947.25+.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.5947 OF 2024WITHCIVIL APPLICATION NO.8901 OF 2024IN WP/5947/2024M/s. A.C. Shaikh Contractors,through its Authorized RepresentativeSahil Khan s/o Arshad Khan, Age : 25 years, Occu: BusinessR/o. Gulshan Palace, Juna Mangalwar BazarOpp. Tamboli Masjit, Ahmednagar … PETITIONERVERSUS1.The State of Maharashtrathrough Principal Secretary,Department of Public Works, Mantralaya, Mumbai.2.Chief Engineers,Public Works Department, Division Chhatrapati Sambhajinagar,Chhatrapati Sambhajinagar.3.Superintending Engineer,Public Works Department,Division Chhatrapati Sambhajinagar,Chhatrapati Sambhajinagar.4.Executive Engineer,Public Works Department,Division Chhatrapati Sambhajinagar,Chhatrapati Sambhajinagar.5.AGC Infracon Pvt. Ltd. (respondents No.5 and 6 added as per order Formerly AG Constructions, dated 21.06.2024)AG house, near PNG Jwellers,CIDCO, Aurangabad.6.J.P. Enterprises,through its lead partner,M/s. J.P. Enterprises, 403, Konark Shram, 156,Tardeo Road, Mumbai – 400034… RESPONDENTS …1/40 1053.WP.5947.25+.odtWITHWRIT PETITION NO.7704 OF 2024WITH CIVIL APPLICATION NO.10159 OF 2024IN WP/7704/2024 WITH CIVIL APPLICATION NO.10457/2024IN WP/7704/2024 WITH CIVIL APPLICATION NO.11267/2024IN WP/7704/2024AGC Infracon Pvt. Ltd.,through its authorized signatory, Mohammad Arif Khan Abdul Gaffur Khan,Age : 48 years, Occu: BusinessR/o. Plot No.147, N-3, CIDCO,Chh. Sambhajinagar … PETITIONERVERSUS1.The State of Maharashtrathrough Additional Chief Secretary,Public Works Department Maharashtra State, Mantralaya, Mumbai.2.The Chief Engineer,Public Works Region, Chh. Sambhajinagar.3.The Superintending Engineer,Public Works Circle,Chh. Sambhajinagar.4.The Executive Engineer,Public Works Division,Chh. Sambhajinagar.5.M/s. J.P. Enterprises (JV),through its Lead partner,M/s. J.P. Enterprises, havingRegistered Office at 403,Konark Shram, 156Tardeo Road, Mumbai – 400 0346.M/s. J.P. Enterprises,having registered office at 403,Konark Shram, 156Tardeo Road, Mumbai – 400 0347.Shrinivas Katkade,(Respondents No.7 to 9 added as per Age: Major, Occu: currently working as order dated 25.09.2024)The Chief Engineer, Public Works Region,Chh. Sambhajinagar.R/o. Bandhkam Bhavan, Snehnagar, Adalat Road,Chh. Sambhajinagar.2/40 1053.WP.5947.25+.odt8.S.S. Bhagat,Age : Major, Occu: currently working as The Superintendent Engineer, Public WorksCircle, Chh. SambhajinagarR/o. Bandhkam Bhavan, Snehnagar, Adalat Road,Chh. Sambhajinagar.9.Ashok Waman Yerekar,Age : Major, Occu: currently working as The Executive Engineer, Public Works Division,Chh. SambhajinagarR/o. The Office of Executive Engineer,PWD, Padampura, Chh. Sambhajinagar … RESPONDENTS …WITHWRIT PETITION NO.9648 OF 2024M/s. J.P. Enterprises (JV),through its Lead Partner,M/s. J.P. Enterprises,having registered office at403, Konark Sharm, 156,Tardeo Road, Mumbai – 400 034,through authorized signatory Mahendra Sing, Age : 29 years,Occu: Service, having office atabove mentioned address. … PETITIONERVERSUS1.The State of Maharashtrathrough the Principal Secretary,Public Works Department, Maharashtra State, Mantralaya, Mumbai – 32.2.The Chief Engineer,(Public Works Department), Public Works Region,Chhatrapati Sambhajinagar.3.The Superintending Engineer,(Public Works Department),Public Works Circle,Chhatrapati Sambhajinagar4.The Executive Engineer,(Public Works Department),Public Works Division,Chhatrapati Sambhajinagar.3/40
Legal Reasoning
1053.WP.5947.25+.odt5.Prashant Bansilal Bamb,Member Legislative Assembly,State of Maharashtra Having District Office at - CTS No.19381/8/1Bansilal Nagar, Station Road,Aurangabad.(Permanent Office, at Post Lasur Station, Tq. Gangapur,Dist. Aurangabad)Maharashtra – 423702Fax No.(022) 22886017 … RESPONDENTS...Mr. Girish K. Naik Thigle, advocate for petitioner in WP/5947/2024 with CA/8901/2024Mr. Devdatt P. Palodkar, advocate for petitionerin WP/7704/2024 with CA/10159/2024, CA/10457/2024 and CA/11267/2024Mr. Amol K. Gawali, advocate for petitioner in WP/9648/2024 andAdvocate for Respondents No.5 and 6 in WP/5947/2024 withCA/8901/2024 and in WP/7704/2024 with CA/10159/2024,CA/10457/2024 and CA/11267/2024Mr. P.G. Godhamgaonkar, Special counsel for Respondent Nos.2 to 4.Ms. P.J. Bharad, AGP for respondent/State. … CORAM : MANGESH S. PATIL & PRAFULLA S. KHUBALKAR, JJ.Reserved on : 04.02.2025Pronounced on : 09.05.2025JUDGMENT (MANGESH S. PATIL, J.) :Heard. Rule in all the petitions. It is made returnableforthwith. The learned AGP and the learned advocates for the respectiverespondents waive service. At the joint request of the parties and in thepeculiar facts and circumstances leading to the filing of these petitions,which are all concerning the same public work, sought to be carried out4/40 1053.WP.5947.25+.odtby the Public Works Department of the State, in order to avoid repetition,the petitions are being disposed of by this common judgment. 2.In order to avoid confusion, the parties are being referred toby their individual nomenclature, rather than their status in the petitions,obviously because these are the petitions filed by three participants in thetender process.3.The checkered history leading to filing of these petitions andthe sequence of events regarding which there is no factual dispute can beculled down as under :i.The Executive Engineer of the PWD, ChhatrapatiSambhajinagar published E-tender Notice No.152 for the year2023-2024 (Engineering Procurement and Construction -EPC), Request for Proposal (RFP) for Construction of FourLane Road from Nagarnaka – Padegaon - Daulatabad T-Point,NH-52 (Old NH-211) near Aurangabad City now ChhatrapatiSambhajinagar, District Chhatrapati Sambhajinagar on18.12.2023.ii.Initially three entities participated by submitting their bidsnamely; S.I. Yadav, J.P. Enterprises and A.G. Construction.iii.The Tender Evaluation Committee scrutinized the bids andnotified the shortcomings to the bidders. After extendingsuch opportunity only A.G. Construction remained eligible toparticipate.5/40 1053.WP.5947.25+.odtiv.As per the Government Resolution in the Public WorksDivision dated 27.09.2018, clause 4.3, since the tenderprocess could not proceed ahead, there being only one bidder,a second call was issued in the form of notice inviting freshbids on 05.03.2024.v.In response to the second call three bidders participatednamely M/s. A.C. Shaikh Contractors (petitioner inWP/5947/2024), M/s. J.P. Enterprises (JV) (petitioner inWP/9648/2024) and A.G.C. Infracon Pvt. Ltd. (petitioner inWP/7704/2024).vi.The tender evaluation committee scrutinized the individualbids and found that only M/s. J.P. Enterprises (JV) and A.G.C.Infracon Pvt. Ltd. qualified the technical bid, on 12.06.2024vii.M/s. A.C. Shaikh Contractors was disqualified, on the groundthat it was not fulfilling the conditions regarding the bidcapacity and the previous experience of executing similar typeof work, as contained in Clause No.2.2 and was notpossessing machinery/equipment as contained in ClauseNo.2.2.2.1(A). Feeling aggrieved by such disqualificationM/s. A.C. Shaikh Contractors preferred the writ petition andchallenged the communication dated 12.06.2024.viii.By the order dated 21.06.2024, while directing notices to beissued to the respondents it was directed that the tender6/40 1053.WP.5947.25+.odtprocess could go on but no work order shall be issued till thenext date, 28.06.2024.ix.In the meanwhile A.G.C. Construction Pvt. Ltd. submitted acomplaint with the Executive Engineer on 21.02.2024 allegingthat M/s. J.P. Enterprises (JV) was wrongly qualified in thetechnical evaluation and rather it had indulged in fraud byquoting misleading figures regarding its turn over andregarding the work done/work in hand.x.A.G.C. Construction Pvt. Ltd. (JV) further alleged that M/s.J.P. Enterprises (JV) had obtained a false certificate of aChartered Accountant which was dated 16.10.2023 in respectof the tender notice published on 18.12.2023. It was alsoalleged that in order to cover up such fraud another certificateof a Chartered Accountant was uploaded on 16.01.2024 andthe figures mentioned in both the certificates did not tally.xi.Instead of black listing M/s. J.P. Enterprises (JV) for resortingto such fraud and in order to protect it, it was disqualified fortrivial reasons in the first call and allege about PWDauthorities being hand in gloves with M/s. J.P. Enterprises(JV) and taking shelter of the Government Resolution dated27.09.2018 under the guise of only A.G.C. Construction Pvt.Ltd. was left in the fray, the second call was issued.xii.While submitting RFP, M/s. J.P. Enterprises put up its bid in7/40 1053.WP.5947.25+.odtthe second call as a joint venture indicating it to be a leadmember having 80% share.xiii.Financial bids were open on 21.06.2024 and M/s. J.P.Enterprises (JV) turned out to be the lowest bidder (L-1).xiv.M/s. J.P. Enterprises which had participated stand alone, inthe first call and was held to be disqualified but did notchallenge such disqualification during technical evaluation.xv.Questioning qualification of M/s. J.P. Enterprises (JV), A.G.C.Infracon Pvt. Ltd. (JV) filed Writ Petition No.7704/2024 on20.07.2024, initially seeking disqualification of M/s. J.P.Enterprises (JV) and offering to undertake the work at thesame rate as quoted by M/s. J.P. Enterprises (JV) for directionagainst PWD authorities for issuing work order in response tothe second call of Tender Notice No.152/2023-2024 dated05.03.2024.xvi.By the order dated 26.07.2024 in W.P. No.7704/2024 filed byA.G.C. Infracon Pvt. Ltd. (JV), while directing notice to beissued, it was also directed that no work order shall be issuedregarding the second call in which M/s. J.P. Enterprises (JV)was found to be the ‘L-1’ bidder.xvii.By way of Civil Application No.7511/2024 inW.P.No.7704/2024, A.G.C. Infracon Pvt. Ltd. (JV) additionally,alleged that though M/s. J.P. Enterprises was technically8/40 1053.WP.5947.25+.odteligible in the first call, in order to save/protect it from beingblack listed for having resorted to fraud, the PWD authoritiesdisqualified it on the grounds which were not, in fact,available for disqualification viz. non-compliance with clauseNo.2.2.2.2(ii) regarding experience of carrying out similartype of work and clause No.2.2.2.1(A) for failure to produceSCADA certificate for Concrete Batch Mix Plant and VibratoryRoller.xviii.By way of amendment M/s. A.G.C. Infracon Pvt. Ltd. (JV) inits petition alleged that in order to further protect M/s. J.P.Enterprises and in collusion with M/s. J.P. Enterprises andM/s. J.P. Enterprises (JV) the PWD authorities were intendingto recall the tender process. The individuals holding theoffices in the PWD department were added as respondentsNos.7 to 9. A direction was solicited for conducting inquiryagainst them. An ad-interim relief preventing them fromrecalling the tender process was also solicited.xix.When writ petitions filed by M/s. A.C. Shaikh Contractors andA.G.C. Infracon Pvt. Ltd. (JV) were listed before the Court on22.08.2024, learned advocate Mr. Godhamgaonkar appearedas a special counsel on behalf of the PWD authorities andinformed the Court that the earlier tender process wasrecalled on 19.08.2024 and a fresh tender notice No.149 for9/40 1053.WP.5947.25+.odt2024-2025 was published for the same work and furthersubmitted that in view of such supervening events thepetitions were rendered infructuous.xx.The learned advocates Mr. Palodkar and Mr. Thigle for A.G.C.Infracon Pvt. Ltd. (JV) and M/s. A.C. Shaikh Contractorsalleged that the decision to cancel the earlier tender processwas taken in a clandestine and surreptitious manner and wasresorted to wriggle out of the mess created by the PWDauthorities and expressed that appropriate amendment wouldbe sought in their respective petitions. They also solicited adirection for maintaining status quo in respect of the freshtender notice No.149 for 2024-2025.xxi. Observing the sequence of events, in which on the previousday A.G.C. Infracon Pvt. Ltd. (JV) was allowed to amend thepetition and even was praying for ad interim relief restrainingthe PWD authorities from recalling the tender process and onthe very next day a statement was made on their behalf aboutrecalling of the tender process and issuance of a fresh tendernotice, by the order dated 22.08.2024 status quo as wasobtaining on that day was directed to be maintained inrespect of the fresh tender notice No.149 for 2024-2025 andleave was granted to M/s. A.C. Shaikh Contractors and A.G.C.Infracon Pvt. Ltd. (JV) to amend the petitions.10/40 1053.WP.5947.25+.odtxxii.By carrying out necessary amendment in both the petitionsprayers were added seeking quashment of the fresh tenderbeing E-tender Notice No.149 for 2024-2025 (EPC) issued bythe Executive Engineer, Chhatrapati Sambhajinagar on19.08.2024 and a further direction was solicited forcompletion of the tender process pursuant to the E-tenderNotice No.152/2023-2024 (EPC) (Second Call of the firsttender).xxiii.In the meanwhile M/s. J.P. Enterprises (JV) and M/s. J.P.Enterprises caused appearance in both the petitions throughtheir learned advocate Mr. Gawali in whose presence, thestatus quo was ordered in respect of the fresh Tender NoticeNo.149 for 2024-2025.xxiv.M/s. J.P. Enterprises (JV) filed Writ Petition No.9648/2024 on03.09.2024 by merely adding the PWD authorities and aMember of the Legislative Assembly of the State, seeking awrit of quo warranto and prayed for quashment and settingaside of the decision dated 19.08.2024 regarding cancellationof the Tender Notice No.152 for 2023-2024 dated 18.12.2023and seeking quashment and setting aside of the Tender NoticeNo.149 for 2024-2025 dated 19.08.2024 and soliciting adirection for issuance of work order having been found L-1bidder in the second call of the first tender Notice No.152 for11/40 1053.WP.5947.25+.odt2023-2024.xxv.A.G.C. Infracon Pvt. Ltd. (JV) filed Civil ApplicationNo.10159/2024 in Writ Petition No.7704/2024 seekingamendment after it was noticed that in spite of the directionof this Court of maintaining status quo in respect of E-tenderNotice No.149/2024-2025 dated 19.08.2024, on 09.09.2024even that tender notice was recalled.xxvi.Mr. Godhamgaonkar on behalf of the PWD authoritiessubmitted, as recorded in the order dated 18.09.2024 thatdue to communication gap and due to administrative transferof staff, erroneously the tender process was cancelled and asecond call in Tender Notice No.149/2024-2025 was issued.He further made statement on their behalf that they wouldnot go ahead with the second call of the Tender NoticeNo.149 of 2024-2025.xxvii.Though notice was directed to be issued to the respondentsthat is PWD authorities and the State in the petition filed byJ.P. Enterprises (JV), notice was not directed to be issued torespondent No.5 therein who is a Member of the LegislativeAssembly.xxviii.Reproducing the sequence of events as mentioned herein, andafter being informed that in spite of the order dated18.09.2024 passed on Civil Application No.10159/2024, and12/40 1053.WP.5947.25+.odtin spite of ad interim relief granted in terms of prayer clause‘C’, thereby staying the effect, implementation and operationof the order/notice dated 09.09.2024 recalling the TenderNotice No.149/2024-2025 as uploaded on the e-procurementwebsite and further noticing that in spite of granting stay tothe second call issued in the tender Notice No.149 for 2024-2025, the financial bids were opened, by a specific order, afterhearing Mr. Godhamgaonkar and soliciting the names ofindividuals, holding the respective posts, a notice of contemptwas directed to be issued to each of them in the prescribedformat in accordance with the rules framed by the BombayHigh Court under the Contempt of Courts Act, 1971.xxix.The respondent – PWD authorities filed their affidavit-in-replyin Writ Petition No.7704/2024 of A.G.C. Infracon Pvt. Ltd.(JV) on 04.09.2024.xxx.It was brought to the notice of the Court that in spite of theorder directing the status quo to be maintained as on03.09.2024 and the earlier order of status quo in Writ PetitionNo.5947/2024, the PWD authorities in breach of the orderagain opened the technical bids of the second call of tendernotice No.149 for 2024-2025.xxxi.Again the second call of the tender notice was recalled on09.09.2024.13/40 1053.WP.5947.25+.odtxxxii.In spite of A.G.C. Infracon Pvt. Ltd. (JV) carried out theamendment in its petition, it participated and responded tothe Tender Notice No.149/2024-2025 and submitted itsonline bid.xxxiii.A.G.C. Infracon Pvt. Ltd. (JV) again moved Civil ApplicationNo.10159/2024 and were allowed to carry out amendment.xxxiv.It is at this stage on 18.09.2024 a statement was made byMr. Godhamgaonkar the learned advocate for the respondent– PWD authorities, as mentioned herein above abouterroneous cancellation of first call of the second tender noticeNo.149 for 2024-2025 and expressly mentioned that theywould go ahead with its first call only.xxxv.The Court granted ad interim relief in terms of prayer clause‘C’ which reads as under :“(C) Pending hearing and till final disposal of the presentCivil Application, the Hon’ble High Court may bepleased to stay the effect, implementation,operation of the Order / Notice dated 09.09.2024passed by respondent Nos. 2 to 4 i.e. TenderingAuthorities in respect of recalling the Tender NoticeNo.EPC-149/2024-2025 on e-procurement website(Annexure ‘Z-3’) and Order/Notice dated09.09.2024 passed by respondent Nos. 2 to 4 i.e.Tendering Authorities in respect of issuance of 2ndcall in respect of Tender Notice No. EPC-149/2024-2025 (Annexure ‘Z-4’). ”xxxvi.Independently, A.G.C. Infracon Pvt. Ltd. (JV) also filedContempt Petition No.835/2024, wherein, notices are stated14/40 1053.WP.5947.25+.odtto have been directed and issued to the PWD authorities.xxxvii.A.G.C. Infracon Pvt. Ltd. (JV) filed Civil ApplicationNo.11267/2024 on 15.10.2024 and placed on record acommunication received from Disciplinary Directorate, theInstitute of Chartered Accountants of India (ICAI) mentioningthat the certificates of the Chartered Accountant regardingturn over etc. submitted by M/s. J.P. Enterprises and M/s. J.P.Enterprises (JV) were fabricated.xxxviii.The stand of the State and the PWD authorities in theaffidavits-in-reply is to the effect that in the first and secondcall of the first tender Notice No.152 for 2023-2024, only onesuccessful bidder remained in the fray, by virtue ofGovernment Resolution dated 27.09.2018 it was imperativefor them to resort to a fresh tender. It was not donedesignedly just to exclude M/s. A.G.C. Infracon Pvt. Ltd. (JV)or to protect M/s. J.P. Enterprises.xxxix.It is the stand of the State and the PWD authorities that in thewake of issue being raised by naturalists expressing concernabout grand old trees which would have been required to becut at the original alignment was to be followed, the StateGovernment had entertained and considered the grievanceand with the sole objective to save the trees in some manner,it directed the alternates to be explored. This laid to15/40 1053.WP.5947.25+.odtrealignment with a substantial modification than the originalplan and proposed construction under tender Notice No.152for 2023-2024. That compel for realignment of a substantialnature and required floating of a fresh tender. Accordingly,the second tender Notice No.149 for 2024-2025 had to beissued. xl.With such narration of the sequence of events we proceed todecide the matters. 4.Mr. Palodkar would take us through the papers andendeavour to point out as to how at every stage of the entire tenderprocess, one after the other, the PWD authorities have acted arbitrarily,capriciously and in utter defiance to the directions of the Court. The basicthread of his argument is to the effect that the whole dispute started afterthe second call of the first tender notice No.152 for 2023-2024 wasissued. He would submit that though M/s. J.P. Enterprises (JV) duringthe second call of the first tender notice had submitted fabricated turnover/bid capacity certificates and several works in hand were suppressedand a complaint was lodged by to the A.C.A.I. He submitted that theallegations are substantiated by the latest communication received fromthe I.C.A.I. produced on the record vide Civil ApplicationNo.11267/2024. He submitted that this was sufficient to black listM/s. J.P. Enterprises but to shield it, the respondent – PWD authoritiesintentionally disqualified M/s. J.P. Enterprises on erroneous grounds16/40 1053.WP.5947.25+.odtnamely; for not having similar projects and certain machinery, when boththese grounds were factually incorrect, inasmuch as, it had produced therelevant papers as can be seen from page No.331,332, 335,336 and 350as regards similar projects and at page No.410,443 and 448 as regardsthe machinery. He would emphasize the fact that such rejection in thesecond call of Notice No.152 for 2023-2024 was not challenged by M/s.J.P. Enterprises (JV), designedly and hand in gloves with the PWDauthorities so that a fresh tender could be issued by taking shelter of theGovernment Resolution dated 27.09.2018 and which accordingly enabledthe PWD authorities to issue the second tender notice No.149 for 2024-2025. He would submit that instead of black listing M/s. J.P. Enterprisesit was saved by resorting to its disqualification which enabled it toparticipate in the second Tender Notice No.149/2024-2025.5.Mr. Palodkar would submit that in spite of specificcomplaints lodged by A.G.C. Infracon Pvt. Ltd. the PWD authorities wentahead and opened financial bids, wherein, M/s. J.P. Enterprises (JV)turned out to be the lowest bidder (L1) and A.G.C. Infracon Pvt. Ltd. (JV)turned out to be second lowest bidder (L2).6.Thus the whole thrust of Mr. Palodkar is to the effect thatthere was strong material to substantiate its allegations about M/s. J.P.Enterprises and M/s. J.P. Enterprises (JV) having indulged in forgery. Thecertificates issued by the Chartered Accountant and certified by theI.C.A.I. have been turned out to be forged one and irrespective of any17/40 1053.WP.5947.25+.odtother happenings, both of them are liable to be black listed and would beout of contention irrespective of whether this Court directs any particulartender process to go on.7.Mr. Palodkar in this regard attracted our attention to Chapter4 of RFP which provides for procedure to be followed in case of fraud andcorrupt practices. He submitted that the PWD authorities failed to takeaction against M/s. J.P. Enterprises and M/s. J.P. Enterprises (JV) duringsecond call in the first tender notice. There is no response to it in theaffidavit-in-reply filed by them and they need to be directed to undertakethis exercise. 8.Mr. Palodkar submitted that A.G.C. Infracon Pvt. Ltd. (JV) isready to undertake the work at the same rate as quoted by M/s. J.P.Enterprises (JV) if, as prayed for, it is black listed, without causing anyburden on the public exchequer.9.Mr. Palodkar would then submit that in fact there was noreason and justification for recalling the tender notice No.152 for 2023-2024. Only minor changes were incorporated to pretend aboutsubstantial change to justify the action of the PWD authorities in issuingthe second tender notice No.149 for 2024-2025. There was no substantialchange. The change could have been covered by the scope of deviation inthe first tender process. There was no need to issue the fresh tender. Asnoticed by this Court, the entire handling of the issue by the PWDauthorities demonstrates that they have least regard to the law or18/40 1053.WP.5947.25+.odtauthority of this Court. They have acted arbitrarily and with the soleobjective of securing the interest of M/s. J.P. Enterprises and M/s. J.P.Enterprises (JV).10.In response to the stand taken by M/s. J.P. Enterprises in itspetition Mr. Palodkar submitted that in the second tender process A.G.C.Infracon Pvt. Ltd. as a joint venture with G.N.I. Infrastructure hasparticipated but in the first tender notice only A.G.C. Infracon Pvt. Ltd.had participated, he submitted that M/s. A.G.C. Infracon Pvt. Ltd. was alead partner in the joint venture with GNI Infrastructure when second callof first tender notice was issued. Subsequently the partnershiptransformed into a Pvt. Ltd. Company and it is the A.G. Construction Pvt.Ltd. which had filed the complaint during second call of the first tendernotice. He would submit that A.G.C. Infracon Pvt. Ltd. was formerlyknown as A.G. Constriction and in that capacity it participated as apartnership firm in the first call of the first tender notice, but thereafterparticipated as an incorporated company.11.Mr. Palodkar would also repel the stand of M/s. J.P.Enterprises (JV) that there is a syndicate of contractors who all have theirregistered offices in Chhatrapati Sambhajinagar and they ensure thatoutstation contractors do not get any contract. Mr. Palodkar wouldsubmit that his client has placed on record several work orders issued inthe past by the PWD authorities from Chhatrapati Sambhajinagar infavour of M/s. J.P. Enterprises. It also works as a contractor with19/40 1053.WP.5947.25+.odtChhatrapati Sambhajinagar Municipal Corporation for more than adecade.12.Mr. Palodkar would advert our attention to the fact that evenM/s. J.P. Enterprises has not endeavoured to point out that it was eligibleto participate in the first tender process and still it was disqualified, tosubstantiate his submission that M/s. J.P. Enterprises was designedlydisqualified so as to enable the PWD authorities to float a fresh tender byresorting to Government Resolution dated 27.09.2018.13.So far as the stand of the PWD authorities and the learnedadvocates of the other respondents on the line that A.G. Construction Pvt.Ltd. (JV) having participated and responded to each of the tendernotices/calls and therefore cannot question it, Mr. Palodkar would submitthat A.G.C. Infracon Pvt. Ltd. is primarily praying for conclusion of thesecond call of the first tender notice in its favour by black listing M/s. J.P.Enterprises. He would submit that without there being any necessity andwithout there being any legally sustainable ground, instead of goingahead with the second call of the first tender notice, by pointing out someminor changes, the PWD authorities have resorted to the second tendernotice. M/s. A.G. Construction Pvt. Ltd. initially challenged the secondtender notice by seeking amendment and thereafter participated in thesecond tender notice No.149/2024-2025. He would submit that M/s.A.G.C. Infracon Pvt. Ltd. had no other option but to participate to keep itschallenge alive. Without participation in the tender process, issue20/40 1053.WP.5947.25+.odtregarding locus standi to challenge the tender process could have beenraised.14.Mr. Thigle for M/s. A.C. Shiakh Contractors submitted that itwas illegally disqualified in the first tender process on two grounds whichwere factually not sustainable. He would submit that it was disqualifiedon the ground that according to SCADA guidelines the concrete batch mixplant offered by it was not located within the radius prescribed underclause 2.2.2.1(A) and that it was called upon to produce documentsrelating to ownership of RC and photographs and 10 numbers of mixers.He would submit that all these documents were already on the recordand were part of the bid submitted by it at (Exhibit-C). In spite of thatarbitrarily it was disqualified, even when soon after it was communicatedwith the decision about its disqualification on 12.06.2024, it hadresponded and pointed out that all these documents were part of its bid,vide communication dated 14.06.2024.15.Mr. Thigle would further submit that though M/s. J.P.Enterprises was already disqualified, it was allowed to participate in thetender process as a joint venture which creates a serious doubt abouttransparency in the entire tender process undertaken by the PWDauthorities. In this respect he would adopt the arguments ofMr. Palodkar to the extent of eligibility of M/s. J.P. Enterprises and M/s.J.P. Enterprises (JV) to participate in the tender process. He would alsoargue that all decisions have been taken by the PWD authorities with the21/40 1053.WP.5947.25+.odtsole objective of somehow helping M/s. J.P. Enterprises (JV) in getting thecontract.16.Mr. Thigle again, in tune with Mr. Palodkar, would submitthat just by indicating minor changes, the PWD authorities havesystematically circumvented the order of this Court. He would submitthat the bid submitted by A.C. Shaikh Contractors is 10% below theestimated cost and the difference between the cost offered by it and thatby M/s. J.P. Enterprises (JV) is more than 11 crore and being the lowestbidder the contract ought to have been awarded to the former. Hewould, therefore, submit that the PWD authorities be directed toconclude the tender process pursuant to the Notice No.152/2023-2024 inits second call and to quash and set aside the Tender NoticeNo.149/2024-2025 (EPC).17.Mr. Gawali for M/s. J.P. Enterprises and M/s. J.P. Enterprises(JV) would at the outset submit that the whole allegations that M/s. J.P.Enterprises and M/s. J.P. Enterprises (JV) being favoured by the PWDauthorities is factually incorrect. In fact, it has turned out to be thelowest bidder in the second Tender Notice No.149/2024-2025 and isentitled to get the contract.18.Mr. Gawali would submit that M/s. J.P. Enterprises hadfulfilled condition No.2.2.2.1(b) of Section 3 in the second call of the firsttender process. It had submitted relevant certificates and documentsregarding completion of similar type of work during last five years in22/40 1053.WP.5947.25+.odtresponse to the public works undertaken by Municipal Council, Udgir andMunicipal Council, Washim, compositely having executed three works ofthe value prescribed in the tender notice. Experience certificate issued byEngineer In-charge regarding completion of ring road of Yavatmal at thecost of Rs.190.19 crore was also submitted which was a joint venture ofM/s. J.P. Enterprises and Jaswant Singh Oberai Construction Pvt. Ltd. Ithad also deposited Rs.10 lakh for shifting of the Fully AutomaticMicroprocessor based PLC with SCADA enabled Concrete Batch Mix Plant(owned) in compliance with clause No.2.2.2.1(A).19.As regards bid capacity, Mr. Gawali would submit that acertificate issued by the Chartered Accountant dated 16.10.2023 wasproduced, wherein, it was mentioned that it was having the bid capacityto the tune of Rs.1066.02 crore. Whereas, as per the tender condition inquestion, the bid capacity required was barely Rs.139.97 crore and it washaving requisite bid capacity to perform the work.20.In respect of the allegations regarding alleged fraud andfabrication Mr. Gawali would submit that the allegation about M/s. J.P.Enterprises having not disclosed four ongoing works aggregating anamount of Rs.76.73 crore, even if it was to be factored in, would stilldemonstrate its bid capacity to perform the work in question whoserequirement was Rs.139.97 crore.21.Mr. Gawali would then submit that in the first call of firsttender notice though three entities had participated namely; M/s. J.P.23/40 1053.WP.5947.25+.odtEnterprises, M/s. S.I. Yadav both were technically disqualified and onlyone bidder namely M/s. A.G. Constructions was technically qualified.Pursuant to the Government Resolution dated 27.09.2018 the tenderprocess was rightly recalled on 29.02.2024. But the second call wasissued on 05.03.2024 hastily and consequently there was no time forM/s. J.P. Enterprises to put up a challenge to the decision to recall thefirst call of the first tender notice.22.He would submit that in the second call of the first tendernotice M/s. J.P. Enterprises participated as a joint venture. M/s. A.C.Shaikh Contractors also responded and A.G.C. Infracon Pvt. Ltd. alsoparticipated. He would submit that in the second call of the first tenderprocess A.G. Construction participated as M/s. A.G.C. Infracon Pvt. Ltd.as a joint venture with GNI infrastructure. He would submit that A.C.Shaikh Contractors was rightly disqualified on the ground of non-compliance of Clause 2.2.2.1(A) in the matter of equipment capabilitiessince it did not own 10 transit mixers and though it had a concrete batchmixer plant the same was not SCADA enabled and was at a distance ofmore than 100 kms and even, as required by the tender condition, ademand draft of Rs.10 lakh as a security for shifting the concrete batchmix plant, was also not enclosed.23.As regards the dispute regarding certificate issued by theChartered Accountant and submitted by M/s. J.P. Enterprises Mr. Gawaliwould submit that a certificate issued by Chartered Accountant Ojha and24/40 1053.WP.5947.25+.odtAgrawal dated 22.03.2024 having UDIN 2417/1273/BK U8242 certifyingthe bid capacity of M/s. J.P. Enterprises to be Rs.970.48 crore was issued,as against the estimated cost of the work in question of Rs.139.97 crore.The certificate of the Chartered Accountant was also annexed withdocuments pertaining to 25 ongoing work orders.24.Mr. Gawali would also submit that though A.G.C. InfraconPvt. Ltd. had lodged a complaint against it with the PWD authorities on03.06.2024 regarding lack of bid capacity and non-execution of similartype of work, the PWD authorities were having the discretion by takingrecourse to Clauses 3.1.4 and 3.1.5 to ignore such deficiencies being ofnon-fundamental character. Accordingly the financial bids were openedand M/s. J.P. Enterprises (JV) turned out to be the (L1) bidder, whereas,A.C.C. Infracon Pvt. Ltd. (JV) was (L2) bidder. Accordingly the proposalwas forwarded by the PWD authorities to the Principal Secretary of thePWD with a recommendation for issuance of work order in favour of M/s.J.P. Enterprises (JV). However, it could not be issued in view of the adinterim order passed by the this Court on 21.06.2024 in the matter ofA.C. Shaikh Contractors in Writ Petition No.5947/2024.25.Mr. Gawali submitted that there is a cartel amongst the localcontractors at Chhatrapati Sambhajinagar, backed by the local MLA whohad sent a letter seeking disqualification of M/s. J.P. Enterprises (JV) intune with the complaint of A.G.C. Infracon Pvt. Ltd. He would submitthat petitioner A.G.C. Infracon Pvt. Ltd. had not participated in the first25/40 1053.WP.5947.25+.odttender notice but it was A.G.C. in joint venture with GNI which hadparticipated and the statement in the petition filed by it about havinglodged complaint against M/s. J.P. Enterprises is factually incorrect.26.Mr. Gawali would submit that the Chief Engineer of thePWD, Aurangabad with an oblique motive acted hand in gloves withA.G.C. Infracon Pvt. Ltd. and the sitting MLA addressed a letter to thePrincipal Secretary proposing a change in the alignment of the road fromKilometer 5.00 to 7.00 under the garb of saving old trees by pretendingthat the area covered by the trees should be kept at the centre in the formof divider and a service road of 5.5 mtrs width to be constructed on eitherside of the existing road. As regards the remaining 6 kms of the proposedroad it was also suggested for replanting the old trees. He would submitthat by communication dated 13.08.2024 the Principal Secretary gave anapproval to a plan suggested by the Chief Engineer of the PWD,Chhatrapati Sambhajinagar and accepted the proposal for publishing afresh tender with a reduced period for completing the tender processwithin 15 days. On 16.08.2024 the Chief Engineer PWD, ChhatrapatiSambhajinagar granted sanction to recall the first tender notice No.152for 2023-2024 due to such deviation in the alignment. Accordingly E-Tender Notice No.149/2024-2025 was published on 19.08.2024, only toensure that M/s. J.P. Enterprises should not get the work order.27.He would submit that with an oblique intention a tendercondition was incorporated to designedly disqualify M/s. J.P. Enterprises26/40 1053.WP.5947.25+.odt(JV) by introducing requirement of having experience in transplantingfully grown trees which are to be affected between Kilometer 5.00 and7.00. Again A.G.C. Infracon Pvt. Ltd. in joint venture with GNIInfrastructure Pvt. Ltd. participated in the second call of second tenderprocess and it is thereafter that this Court issued contempt notices againstthe PWD authorities.28.Mr. Gawali would then submit that by filing Writ PetitionNo.7704/2024 , A.G.C. Infracon Pvt. Ltd. could get the order of the Courtto maintain status quo in respect of the fresh Tender Notice No.149 tillthe next date. However, after obtaining the stay order, it (A.G.C. InfraconPvt. Ltd.) responded to and participated in the tender Notice No.149. Hewould submit that undermining the order of the Court dated 18.09.2024the PWD authorities recalled the first call of the second tender processand issued a second call where the last date for submission of bid was17.09.2024 and the bids were to be opened on 19.09.2024.29.Mr. Gawali would lastly, submit that the circumstances arewrit large and point out collusion between A.G.C. Infracon Pvt. Ltd. andthe PWD authorities at the behest of the sitting MLA and their concertedeffort in somehow excluding participation of M/s. J.P. Enterprises andM/s. J.P. Enterprises (JV) from the tender process. He would submit thathaving been found to be (L1) bidder in the second call of the first TenderNotice No.152/2023-2024, M/s. J.P. Enterprises deserves to be issuedwith work order.27/40 1053.WP.5947.25+.odt30.Mr. Godhamgaonkar the special counsel engaged by the PWDauthorities would reiterate the aforementioned facts and circumstancesand would deny about they having acted arbitrarily or are favouring anyof the petitioners/bidders. He also denied about having acted at thebehest of the sitting MLA. He would justify the decisions of the PWDauthorities in disqualifying A.C. Shaikh Contractors in the second bid ofthe first tender process. He also denied about wrongly disqualifying M/s.J.P. Enterprises just to enable them to recall second call of the first tenderprocess and to go for second Tender Notice No.149/2024-2025.31.He submitted that on opening of financial bids in the secondcall of tender Notice No.152 for 2023-2024, M/s. J.P. Enterprises wasturned out to be (L1) bidder. It was forwarded to the State Governmentfor acceptance of the bid to enable issuance of the work order. However,some tree lovers approached the government and raised issue regardingmany old trees likely to be affected during the construction of theproposed road. All such trees are more than 100 year old spread throughout the stretch of the road to be constructed. The government asked theChief Engineer of the PWD, Chhatrapati Sambhajinagar to undertake asurvey and to submit a report. Thereafter the State Government issueddirections for issuing fresh tender. Accordingly Chief Engineer, PWD,Chhatrapati Sambhajinagar gave revised technical sanction and theearlier tender process was required to be recalled. He would thus submitthat in view of such supervening events, since all the three petitions were28/40 1053.WP.5947.25+.odtfiled prior to such event, have became infructuous. It is only pursuant tothe amendments which were permitted by the Court thereafter that thethree writ petitions still survive. He would, therefore, submit that sincethe earlier tender process was required to be recalled pursuant to a policydecision emanating from the State Government, the PWD authorities atChhatrapati Sambhajinagar cannot be attributed with mala fides orarbitrariness.32.Mr. Godhamgaonkar would then submit that there was nointention muchless defiance on the part of the PWD authorities who werebound to obey the instructions from the State Government. The changein the policy pursuant to the issue regarding existing trees could not havebeen comprehended. Somehow the issue had reached the StateGovernment requiring recalling of the earlier tender process andrealignment of the entire stretch of the road. It was merely aconsequence and was not intended to adversely affect any of the bidders. 33.Mr. Godhamgaonkar would submit that though this Courthad directed status quo to be maintained, the decision to recall the tenderprocess was not designed to circumvent the order of the Court. 34.However, Mr. Godhamgaonkar would fairly concede that dueto mistake on the part of employees in the office of the PWD authoritiesand due to general transfers of the staff member, erroneously the first callof the second Tender Notice No.149/2024-2025 was recalled. Afterrealizing it a statement was made in the open Court by him that the29/40 1053.WP.5947.25+.odtauthorities would go ahead with the Tender Notice No.149/2024-2025.35.He would submit that in response to Tender NoticeNo.149/2024-2025 only A.G.C. Infracon Pvt. Ltd. participated andpursuant to the Government Resolution dated 27.09.2018 a second callwas required to be issued. No fresh tender was floated. In conclusion hewould submit that the petitioners have no right to put up a challenge tosuch decisions of the PWD authorities and the State Government, takenfrom time to time in view of the change of the entire project. The earlierproject has become non-existent and cannot be taken forward. The workcannot be completed now with the change in the alignment furtherrequiring re-plantation of some trees from a portion of the stretch of theroad. He would then cite following decisions to buttress his submissionthat the tender jurisprudence has settled down and the power of anemployer to under take the work is a paramount consideration : a) TATA Cellular Vs. Union of India ; AIR 1996 SC 11b) Shri Ganesh Enterprises and Anr. Vs. CIDCO ; 2024 (6) Mh.L.J. 607c) Silppi Constructions Contractors Vs. Union of India and Anr.; (2020) 16 SCC 489d) Caretel Infotech Ltd. Vs. Hindustan Petroleum Corp. Ltd. and Ors. (2019) 14 SCC 8136.One need not delve deep to understand the scope and ambitof judicial review in the tender matters. Even some unreasonableness andillegalities need to be ignored as laid down in the matter of Tata MotorsLtd. Vs. Brihan Mumbai Electric Supply and Transport Undertaking(BEST); 2023 SCC OnLine SC 671. Arbitrariness per se without any30/40 1053.WP.5947.25+.odtintention to entertain any bias and without there being strong material toattribute mala fides cannot be interfered with. 37.After taking a walk through the checkered history and afterconsidering the submissions of the learned advocates on the lines of theirpleadings, in our considered view, it would be appropriate to cull downsome facts and the sequence of events to facilitate adjudication of theconflicting rights of all the three bidders as also that of the State in theform of PWD authorities’ right as an employer to undertake the publicwork through tender processes.38.It is necessary to note that when Tender NoticeNo.152/2023-2024 was published on 08.12.2023, only three biddersnamely; S.I. Yadav, M/s. J.P. Enterprises and A.G. Construction hadparticipated. On the technical scrutiny only A.G. Constrictions was heldto be technically qualified. The Government Resolution in theDepartment of Public Works dated 27.09.2018 provides that in case ofpublic works being undertaken if there remains only one qualified bidder,a second call has to be published so that some more bidders canparticipate.39.The A.G.C. Infracon Pvt. Ltd. as a joint venture with G.N.I.Infra. Pvt. Ltd. participated in the second call of the second Tender NoticeNo.149/2024-2025. It filed Writ Petition No.7704/2024 on 20.07.2024,alleging that in light of the alleged fraud perpetrated by M/s. J.P.Enterprises which had participated in the second call as M/s. J.P.31/40 1053.WP.5947.25+.odtEnterprises (JV), the PWD authorities instead of blacklisting it, openedthe financial bids and M/s. J.P. Enterprises (JV) was found to be the (L1),whereas, the A.G.C. Infracon Pvt. Ltd. (JV) turned out to be the (L2)bidder and prays that M/s. J.P. Enterprises (JV) be declared asdisqualified and being the (L2) bidder it shall be directed to be thesuccessful bidder.40.Though at the first blush such a stand of A.G.C. Infracon Pvt.Ltd. (JV) seems to be attractive, its hollowness comes to the fore if onelooks deep. A.G.C. Infracon Pvt. Ltd. (JV) does not expressly come with astand that M/s. A.C. Shaikh Contractors who filed Writ PetitionNo.5947/2024 and who was one of the three participants in the secondcall of the first Tender Notice No.152/2023-2024 was also qualified butwas illegally disqualified. Needless to state that if there were threeparticipants and two of them namely; M/s. J.P. Enterprises (JV) and M/s.A.C. Shaikh Contractors were disqualified, only A.G.C. Infracon Pvt. Ltd.(JV) would remain in the fray and it was imperative in the light of theGovernment Resolution dated 27.09.2018 for the PWD authorities to gofor a fresh tender process, which they did, in the form of publication ofTender Notice No.149/2024-2025. 41.In this regard it is necessary to note that A.C. ShaikhContractors filed the writ petition which is the first out of these three writpetitions, on 15.06.2024. It was filed initially even without arraying theother two bidders namely; A.G.C. Infracon Pvt. Ltd. and M/s. J.P.32/40 1053.WP.5947.25+.odtEnterprises (JV). In the first order dated 21.06.2024 while directing thenotices to be issued, simultaneously, a direction was issued to add both ofthem as respondents. This circumstance, in our considered view, lendscredence to the stand of M/s. J.P. Enterprises (JV) and supports thesubmission of Mr. Gawali that there is room to believe that A.G.C.Infracon Pvt. Ltd. (JV) does not seem to be as plain and transparent as itpretends to be and there is reason to believe that it has been acting handin gloves with M/s. A.C. Shaikh Contractors.42.There is one more reason to lend credence to our suchinference. In spite of the aforementioned sequence of events, thoughA.G.C. Infracon Pvt. Ltd. filed the writ petition on 20.07.2024, TenderNotice No.149/2024-2025 was published on 19.08.2024. The last date ofsubmission of the bids was 03.09.2024 and the technical bids were to beopened on 05.09.2024. In response there to, only M/s. A.G. Construction(JV) responded and being the single bidder in the fray, again a secondcall was required to be issued and was indeed issued on 19.09.2024referring to and relying upon the Government Resolution dated27.09.2018. A.G.C. Infracon Pvt. Ltd. filed the Writ PetitionNo.7704/2024 on 20.07.2024 and simultaneously, it participated andresponded to the Tender Notice No.149/2024-2025 by submitting its bidwithout demur.43.Though it is now being submitted by Mr. Palodkar that it hadno option but to participate and respond to the second Tender Notice33/40 1053.WP.5947.25+.odtNo.149/2024-2025, in our considered view, as has been noted by us inthe order dated 22.08.2024 in Writ Petition No.7704/2024 and WritPetition No.5947/2024 passed in common, that it was unbecoming forthe PWD authorities to float a fresh tender in the form of Tender NoticeNo.149/2024-2025 and for disobedience of the order, it was directed thatno work order shall be issued. If the PWD authorities were alreadydirected not to issue the work order, while A.G.C. Infracon Pvt. Ltd. wasalready before this Court, there was no reason for it to have participatedand responded to the Tender Notice No.149/2024-2025, more so when itwas already seeking the prayer for finalization of the second call of thefirst Tender Notice No.152/2023-2024, wherein, it was found to be (L2)bidder and was not questioning disqualification of A.C. ShaikhContractors and was merely seeking disqualification of M/s.J.P.Enterprises (JV). This circumstance, in our considered view, againbuttresses our inference that A.G.C. Infracon (JV) does not seem to beacting bona fide.44.One more aspect that needs to be emphasized in this regardis the fact that in spite of all such supervening events, post filing of WritPetition No.5947/2024 on 15.06.2024, M/s. A.C. Shaikh Contractorsneither participated and responded to the second Tender NoticeNo.149/2024-2025 either in the first call or the second call nor did itseek to make any amendment in its petition, till it did so on 22.08.2024.In fact, by an elaborate order passed on 22.08.2024 observing as to how34/40 1053.WP.5947.25+.odtthe PWD authorities were in breach of the order of this Court, on therequest being made by Mr. Thigle on behalf of M/s. A.C. ShaikhContractors, leave was granted to amend the petition and to bring onrecord such supervening events. In spite of such order M/s. A.C. ShaikhContractors did not carry out any amendment even when M/s. A.G.C.Infracon Pvt. Ltd. (JV) carried out a similar amendment promptly, andeven when M/s. J.P. Enterprises filed petition on 03.09.2024 andadditional amended was also allowed to be carried out by the order dated02.09.2024.45.It is at that belated stage that M/s. A.C. Shaikh Contractorschose to amend the petition and sought to take exception to the E-TenderNotice No.149/2024-2025. Both, M/s. A.C. Shaikh Contractors as alsoA.G.C. Infracon Pvt. Ltd. (JV) seek to challenge the second Tender NoticeNo.149/2024-2025. But as is pointed out earlier, M/s. A.C. ShaikhContractors did not either seek to enforce the order of status quo nor didit respond to the second Tender Notice No.149-2024-2025 and onlyA.G.C. Infracon Pvt. Ltd. (JV) submitted its bid and being the lone bidderin the fray even that first call was cancelled.46.These circumstances would indicate that M/s. A.C. ShaikhContractors was not keen in prosecuting its cause and allowed the thingsto move in spite of having obtained the order of status quo and evenmade an attempt to stall the process without arraying the other biddersand in spite of knowing that even if it was a breach of the order of the35/40 1053.WP.5947.25+.odtCourt that PWD authorities had gone ahead and published Tender NoticeNo.149/2024-2025. It did not promptly object to even participation ofA.G.C. Infracon Pvt. Ltd. (JV) in the second tender process. To repeat, ifthese circumstances are looked into, coupled with the fact, as mentionedherein above, that in Writ Petition No.7704/2024 A.G.C. Infracon Pvt.Ltd. avoided to question disqualification of M/s.A.C. Shaikh Contractors,are the circumstances to look upon their conduct with a pinch of salt.47.This takes us to the aspect regarding the stand being takenby the PWD authorities. Irrespective of the submissions of learnedadvocates of all the three bidders, wherein, they seem to be unanimous,admittedly, after publication of the first Tender Notice No.152/2023-2024, as is the stand of the PWD authorities, the issue regarding savingthe 100 year old trees on the stretch of the road whose construction hasto be undertaken, was raked up by some nature lovers and the issue hadreached up to the State Government. Exploring eventualities of goingahead with the proposal by cutting all the trees and only concretizingexisting asphalted road without cutting the trees, both of which werefound to be not feasible, that the third option was decided to be explored,of concretizing the existing road without a divider and saving the trees oneither side of the road by providing a concretized service road. It is thestand of the PWD authorities that this led to substantial change in thealignment of the road and even resulted in change in the nature of thework to be performed by the contractors. Even it has become imperative36/40 1053.WP.5947.25+.odtto replant some of the trees. All such circumstances and the stand of thePWD authorities in their affidavit-in-reply has gone without a demur.There is no concrete material or stand of the petitioners to question thisreason for the PWD authorities to float second Tender NoticeNo.149/2024-2025.48.One need not overemphasize the authority of an employer inthe tender jurisprudence, which has been reiterated by the SupremeCourt in the matter of TATA Cellular (supra), Silppi Constructions(supra), Jagdish Mandal Vs. State of Orissa and Ors.; (2007) 14 SupremeCourt Cases 517 and the latest being TATA Motors (supra). It is trite thatthe employer has the discretion to decide as to how it intends toundertake construction of a public project. The High Court in exercise ofthe powers under Article 226 of the Constitution of India has limitation toprevail over such discretion vesting with the employers. The question offeasibility, propriety, correctness are the aspects which this Court cannotundertake and scrutinize.49.If the first tender process merely expected the contractors tocarryout construction of a concretized four lane road with a divider andwithout there being any whisper about cutting/transplantation of thetrees obstructing such construction or otherwise, no fault can be foundwith the decision of the PWD authorities and the State Government to gofor the second Tender Notice with a change in alignment and prescribingstipulations therefore. 37/40 1053.WP.5947.25+.odt50.Therefore, though there is some room still to attribute thePWD authorities with haphazardness to the extent they resorted to suchissuance of a second Tender Notice No.149/2024-2025 in the light of factthat there was already an order of status quo, the aforementioned aspectscompelling the PWD authorities and the State Government for recallingthe first Tender Notice No.152/2023-2024 and for going for the secondTender Notice No.149/2024-2025, cannot be said to be arbitrary orunreasonable, muchless illegal. 51.The stand of the PWD authorities that only A.G.C. InfraconPvt. Ltd. (JV) participated in the first call of second Tender NoticeNo.149/2024-2025 and by resorting to Government Resolution dated27.09.2018 they had decided to go for a second call has not beencontroverted by any of the three petitioners. 52.Endeavour was made by Mr. Palodkar as also Mr. Gawali tostrenuously submit that in the first Tender Notice No.152/2023-2024there was a scope for some deviation and even this aspect of saving thetrees could have been covered by such scope for the deviation and therewas no need for the PWD authorities to float a fresh tender when all thethree bidders who filed the petitions, had placed their respective bids andwith their consensus the authorities could have resorted to suchdeviation. In our considered view, again, it would be for the PWDauthorities and the State being the employers, to decide as to in whatmanner the public work can be undertaken. Whether they could have38/40 1053.WP.5947.25+.odtresorted to a fresh tender process or could have simply made anendeavour to bring about consensus amongst the bidders, regarding suchdeviation, in our considered view, in the peculiar facts and circumstancesdiscussed herein above, cannot be a subject matter of judicial review.There is nothing to attribute the PWD authorities with any mala fidesalbeit something can be said about their conduct in dealing with theentire subject in a haphazard manner in the light of the order of statusquo passed by this Court and still they going ahead with the process.Consequently, with such substantial change in the project, no fault can befound with the PWD authorities and the State in deciding to go aheadwith the fresh tender process by cancelling the first tender processnamely Tender Notice No.152/2023-2024.53.This puts at rest all the controversy to the extent thatpetitioner M/s. A.C. Shaikh Contractors which is seeking quashment ofthe Tender Notice No.149/2024-2025 and questioning its disqualificationin the second call of the Tender Notice No.152/2023-2024. Same wouldbe the case in respect of the petition of A.G.C. Infracon Pvt. Ltd. (JV)which again is seeking disqualification of M/s. J.P. Enterprises (JV) andseeking the contract to be awarded to it being (L1) bidder in the secondcall of the first tender process namely Tender Notice No.152/2023-2024.Again, as regards the writ petition of M/s. J.P. Enterprises (JV), which isagain questioning its disqualification in the second call of the first TenderNotice No.152/2023-2024 and soliciting writ of mandamus directing the39/40
Decision
1053.WP.5947.25+.odtPWD authorities to award the work pursuant thereto to it and alsopraying for quashment of its second E-tender Notice No.149/2024-2025,would not survive once it is found that there is no illegality in thedecision of the State and the PWD authorities in resorting to a freshtender notice in the form of Tender Notice No.149/2024-2025 due to thechange in the alignment and nature of the public work to be performedbeing found to be beyond the scope of judicial review. Consequently, allthe three petitions are liable to be dismissed.54.As regards the contempt proceedings are concerned we leavethat aspect to be considered by the appropriate bench dealing with suchmatters according to the roster.55.In the light of above, all the three writ petitions aredismissed. Rule is discharged. Pending civil applications are disposed of. [ PRAFULLA S. KHUBALKAR] [ MANGESH S. PATIL ] JUDGE JUDGEhabeeb40/40