Mr. Sayyed Tauseef Yaseen, Advocate for v. M. Jaware, AGP for
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wp-11061-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.11061 OF 2023Saibhumi ConstructionThrough its Proprietor,Manoj Sahebrao Salunke,Age: 50 years, Occu.: Business,R/o. Adarsh Nagar, Opp. GaneshMangal Karyalaya, Hirapur Road,Chalisgaon, Dist. Jalgaon... PETITIONERVERSUS1.State of MaharashtraThrough its Secretary,Rural Development Department,Mantralaya, Mumbai – 4000322.The Collector, BeedOffice of the Collector, Beed.3.Chief Executive Officer,Zilla Parishad, Beed,Office of the Zilla Parishad,Beed. .. RESPONDENTS...WITHCIVIL APPLICATION NO.14749 OF 2023Ganesh Haribhau KhandeAge: 42 years, Occu.: Business,R/o. C/o. Mohiniraj ConstructionsNavghan Plaza, Jalna Road,Beed – 431122.. APPLICANTVERSUS1.State of MaharashtraThrough its Secretary,Rural Development Department,Mantralaya, Mumbai – 400032[1]
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wp-11061-2023.odt2.The Collector, BeedOffice of the Collector, Beed.3.Chief Executive Officer,Zilla Parishad, Beed,Office of the Zilla Parishad,Beed. 4.Saibhumi ConstructionThrough its Proprietor,Manoj Sahebrao Salunke,Age: 50 years, Occu.: Business,R/o. Adarsh Nagar, Opp. GaneshMangal Karyalaya, Hirapur Road,Chalisgaon, Dist. Jalgaon...RESPONDENTS…Mr. Sayyed Tauseef Yaseen, Advocate for Petitioner.Mr. V. M. Jaware, AGP for respondents – State.Mr. S. R. Shirsat, Advocate for respondent No.3.Mr. V. S. Kadam, Advocate for intervenor.… CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ. RESERVED ON : JANUARY 19, 2024. PRONOUNCED ON : FEBRUARY 07, 2024. JUDGMENT (Per Smt. Justice Vibha Kankanwadi, J.) :- .Rule. Rule made returnable forthwith. Heard learned Counsel forthe appearing parties finally by consent.2.Present writ petition has been filed by the petitioner for followingreliefs :-“B.By issuing Writ of Certiorari or any other Writ,order or direction in the like nature, to quash and setaside the technical bid scrutiny dated 14.08.2023disqualifying the petitioner from participating in the[2] wp-11061-2023.odttender process at Exhibit-B issued by respondent ZillaParishad, Beed as being illegal, arbitrary.C.By issuing appropriate Writ of mandamus orany other Writ, order or direction in the like nature, todeclare the petitioner as qualified in the technical bidscrutiny dated 14.08.2023 allowing him to participate intender process at Exhibit-A.”3.The facts leading to the petition are that the petitioner had takenpart in the tender process issued by Zilla Parishad, Beed for variousworks in Jal Jeevan Mission. The tender notice was published on14.03.2022. He participated in the said tender process. Petitioner wasinformed on 22.04.2022 that work done certificate relied by him bearsthe signature of Deputy Engineer. He was directed to cure the defect.Thereafter the petitioner submitted the work done certificate signed bythe Executive Engineer, Rural Water Supply Division, Zilla Parishad,Jalgaon vide application dated 27.04.2022. It was accepted by theZilla Parishad satisfying the defects pointed out by respondent No.3.However, thereafter, the petitioner received mail informing that his bidfor village Nathapur has been rejected. On perusal of the technical bidit appears that it was opened on 14.08.2023, but it bears thesignature of Executive Engineer, Shri. Namdeo Ubale, who stoodretired in the month of April, 2022. In spite of curing the defect, thesame was not considered and for the same defect (which was curedlater) his technical bid has been rejected. The petitioner also submits[3] wp-11061-2023.odtthat in fact the said tender process was cancelled by respondent No.3vide order dated 31.10.2022 and fresh tender was initiated on14.11.2022. In the said fresh tender, petitioner had participated andwas found eligible and, therefore, there is illegality in the entireprocess. Therefore, he has prayed for setting aside the scrutiny by thetechnical bid committee and declare him as qualified.4.On behalf of respondent No.3 Avinash Prabhakar Pathak, ChiefExecutive Officer, Zilla Parishad, filed the affidavit-in-reply. Hesubmitted that during the tenure of his predecessor, the tenders werefloated on 14.03.2022 as there were complaints from politicians. Hispredecessor by order dated 10.06.2022 cancelled the entire tenderprocess. The said cancellation was challenged before this Court in WritPetition No.6411 of 2022. Group of individuals also approached thisCourt by filing Writ Petition No.9182 of 2022 and companion matters.In view of the statement by the deponent on 20.04.2023 that freshtender notice has been issued on 14.11.2022, Writ Petition No.6411 of2022 and connected Writ Petitions came to be disposed of, however,thereafter some Grampanchayats had filed Writ Petition No.6085 of2023 and companion matters seeking direction that Jal Jeevan Missionbe commenced at the earliest for their villages. This Court whiledisposing of those writ petitions, restored the first tender process andcancelled the second and it was directed that the first tender processbe taken forward from its left out earlier stage. According to the same,[4] wp-11061-2023.odtthe petitioner had submitted the certificate issued by Deputy Engineer,which was not in compliance with the mandatory condition. Further, itappears that there is manipulation in the date. It is then stated thatthe technical bids in respect of village Nathapur were opened on14.08.2023 under the signature of the then in-charge ExecutiveEngineer by name Mr. Namdeo Ubale. In fact, the scrutiny was donewhen he was in service. Condition No.9 of the E-tender Notice wasrelied by intervening M/s. Mohiniraj Construction, wherein receipt of afresh document for curing defects was banned. Various Writ Petitionshave been filed just to stall the tender process. The tenders werefloated to give drinking water in the rural area and the said object isnot being achieved. 5.Rejoinder has been filed by the petitioner reiterating the samecontents in the petition and denying the allegations in the affidavit-in-reply. 6.Civil Application No.14749 of 2023 is filed by the intervenorMohiniraj Constructions, who has now been declared as qualified. Thesaid application stands allowed and thereupon, opportunity of hearingis given.7.Heard learned Advocate Mr. Sayyed Tauseef Yaseen for thepetitioner, learned AGP Mr. V. M. Jaware for respondents – State,learned Advocate Mr. S. R. Shirsat for respondent No.3 as well as[5] wp-11061-2023.odtlearned Advocate Mr. V. S. Kadam for applicant/ intervenor in CivilApplication No.14749 of 2023. In order to cut short, it can be said thatall of them have made submissions in support of their respectivecontentions. 8.The facts are not much in dispute. It appears that in all 19 workswere put in one tender notice, which was floated on 14.03.2022.When the said tender process was cancelled on 10.06.2022, WritPetition No.6411 of 2022 was filed before this Court and in themeantime, second tender process was taken up. This Court by orderdated 10.08.2022 in Writ Petition No.6411 of 2022 therefore directedthat the second tender process should not be finalized until furtherorders. On 20.04.2023, a statement was made by respondent No.3before this Court that the second tender process has been suspendedand the earlier tender process would be taken to its logical end and,therefore, on 27.06.2023, a detailed order was passed by this Court,allowing the first tender process to be proceeded from the stage atwhich it was get in abeyance. Now, the petitioner is contending thatwhen the hearing had taken place in the office of respondent No.3 on22.04.2022, he was asked to cure the defect and, thereafter heobtained the certificate from Executive Engineer (which was themandatory requirement in the tender) and then he submitted thesame along with letter dated 27.04.2022. We may not go into the[6] wp-11061-2023.odtdispute as to whether there is manipulation in the date etc., but thefact remains is that prior to 22.04.2022 the petitioner was not holdingthe said document i.e. work done certificate by Executive Engineer,which was the date on which the tender scrutiny was done. There is nostipulation in the tender for acceptance of documents to cure thedefects. When he has not complied with a clear mandatory provision,his rejection was justified. 9.Now, turning towards the objection in respect of signature ofMr. Namdeo Ubale on the date when the scrutiny was opened i.e.14.08.2023, respondent No.3 has given explanation that the scrutinywas already done prior to 31.05.2022 i.e. before the retirement ofMr. Namdeo Ubale and in view of the order passed by this Court inWrit Petition No.6805 of 2023 to start the first tender process from thestage at which it was kept in abeyance, only opening of that documenton 14.08.2023 cannot be said to be a point/ground in favour of thepetitioner.10.We would like to rely on the decision in M/s. N. G. ProjectsLimited Vs. M/s. Vinod Kumar Jain and Ors., [2022 LiveLaw (SC) 302],wherein it has been observed that :-“23.In view of the above judgments of this Court, theWrit Court should refrain itself from imposing its decisionover the decision of the employer as to whether or not toaccept the bid of a tenderer. The court does not have the[7] wp-11061-2023.odtexpertise to examine the terms and conditions of thepresent-day economic activities of the State and thislimitation should be kept in view. Courts should be evenmore reluctant in interfering with contracts involvingtechnical issues as there is a requirement of the necessaryexpertise to adjudicate upon such issues. The approach ofthe Court should be not to find fault with magnifying glass inits hands, rather the Court should examine as to whetherthe decision-making process is after complying with theprocedure contemplated by the tender conditions. If theCourt finds that there is total arbitrariness or that the tenderhas been granted in a mala fide manner, still the Courtshould refrain from interfering in the grant of tender butinstead relegate the parties to seek damages for thewrongful exclusion rather than to injunct the execution ofthe contract. The injunction or interference in the tenderleads to additional costs on the state and is also againstpublic interest. Therefore, the State and its citizens suffertwice, firstly by paying escalation costs and secondly, bybeing deprived of the infrastructure for which they present-day Governments are expected to work.”11. No case is made out for exercising the constitutional powers ofthis Court under Article 226 of the Constitution of India. 12.For the above-said reasons, the Writ Petition stands dismissed. 13.Rule is discharged.[ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[8]