Writ Petition No. 15731 of 2023 · Bombaybench High Court
Case Details
2024:BHC-AUG:1612-DB WP-15731-2023 with15729-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.15731 OF 2023Dream ConstructionThrough its Power of AttorneyShubham s/o Madhav Thakre,Age: 26 years, Occu.: Contractor,Having office at Survey No.598,Raghuvanshi Nagar, Near KhodiMata Mandir, Nandurbar – 425412... PETITIONERVERSUS1.The State of MaharashtraThrough its Principal Secretary,Public Works Department,2nd Floor, Annex Building, Mantralaya,Madam Cama Road, Nariman Point,Mumbai, Maharashtra – 400032.The Executive Engineer,Public Works Division, Nandurbar.3.Balaji ConstructionThrough its ProprietorVishwanath Mewalal JaiswalAge: Major, Occu.: Business,R/o. At Near Maruti Vyayam ShalaPardeshipura, Nandurbar 4254124.M/s Kamlesh PatilThrough its ProprietorKamlesh Manohar Patil Age: Major, Occu.: Business,R/o. At 73, Amar Colony,Near Kilbil Hospital,Nandurbar 4254125.Rohit Pravin ChaudhariThrough its ProprietorRohit Pravin ChaudhariAge: Major, Occu.: Business,[1]
Legal Reasoning
WP-15731-2023 with15729-2023.odtR/o. At Sahara Town,Nandurbar 425412.6.M/s. V. V. Patil ConstructionsThrough its ProprietorTushar Vasant PatilAge: Major, Occu.: Business,R/o. At 21, Mangalya, Radhakrishna Nagar, Near Navjeevan Hospital,Nandurbar 425412.7.Parth InfrastructureThrough its ProprietorPankaj Gautamchand JainAge: Major, Occu.: Business,R/o. At 45 ML TownAhinsa Chowk Nalva Road,Nandurbar 425412.8.Giriji ConstructionThrough its ProprietorAvinash Shankarrao MoreAge: Major, Occu.: Business,R/o. At 56, Girija VardhamanNagar, Nandurbar 425412.9.Laxman PatilThrough its ProprietorLaxman Ramesh PatilAge: Major, Occu.: Business,R/o. At 62, Shriji Park,Nandurbar 425412.10.Rohan Trambakrao KhalkarThrough its ProprietorRohan Trambakrao KhalkarAge: Major, Occu.: Business,R/o. At 20, Surbhi SiddeshwarSoc. Shivaji Nagar, Sinnar,Maharashtra 422103.11.Suryakant Bhagwan JadhavThrough its ProprietorSuryakant Bhagwan JadhavAge: Major, Occu.: Business,[2] WP-15731-2023 with15729-2023.odtR/o. At A/p. Londhare,Tq. Shahada, Dist. Nanduarbar12.Swami Buildcon, NandurbarAge: Major, Occu.: Business,R/o. At Mataji Mandir TalobaRoad 115, Girivihar Colony,Nandurbar 425412... RESPONDENTS……….Ms. Pradnya S. Talekar i/b Talekar and Associates, Advocate forpetitioner.Mr. A. B. Girase, G.P. for respondent Nos.1 and 2.Mr. V. D. Sapkal, Senior Counsel i/b Mr. S. R. Sapkal, Advocate forrespondent Nos.3, 4, 7, 8 and 12.Mr. Sanjeev B. Deshpande, Senior Counsel i/b Mr. Swapnil Patunkar,(J. P. Legal Associates) Advocate for respondent Nos.5, 6, 9 and 10.Mr. Rahul S. Pawar, Advocate for respondent No.13.……….WITHWRIT PETITION NO.15729 OF 2023Dream ConstructionThrough its Power of Attorney,Shubham s/o Madhav Thakre,Age: 26 years, Occu.: Contractor,Having office at Survey No.598,Raghuvanshi Nagar, Near KhodiMata Mandir, Nandurbar-425412... PETITIONERVERSUS1.The State of MaharashtraThrough its Principal Secretary,Public Works Department,2nd Floor, Annex Building, Mantralaya,Madam Cama Road, Nariman Point,Mumbai, Maharashtra – 400032.The Executive Engineer,Public Works Division, Nandurbar.[3] WP-15731-2023 with15729-2023.odt3.Ridhi ConstructionThrough its ProprietorShirish Mahendra Patil,Age: Major, Occu.: Business,R/o. At Savalde Po. Korit,Tq. And Dist. Nandurbar.4.Kamlesh Manohar PatilAge: Major, Occu.: Business,R/o. At 73, Amar Colony,Near Kilbil Hospital,Nandurbar 425412.5.Shantaram Sahebrao PatilAge: Major, Occu.: Business,R/o. At 48, Ambika Colony, near Dhula Chaufully,Nandurbar 425412.6.M/s. V. V. Patil ConstructionsThrough its Proprietor,Tushar Vasant Patil,Age: Major, Occu.: Business,R/o. At 21, Mangalya RadhakrishnaNagar, Near Navjeevan HospitalNandurbar 425412.7.Rohit Pravin ChaudhariAge: Major, Occu.: Business,R/o. At Sahara Town,Nandurbar 425412.8.Akshay Bhaidas PatilAge: Major, Occu.:Business,R/o. At near Ram Mandir A/p.Dhadgaon, Maharashtra.9.Subhash Purshottam ChaudhariAge: Major, Occu.: Business,R/o. At Jalka Bazar,Near Old Post Office,Nandurbar 425412.10.Laxman Ramesh PatilAge: Major, Occu.: Business,[4] WP-15731-2023 with15729-2023.odtR/o. At 62, Shriji Park,Nandurbar 425412.11.Rakesh Dattu PatilAge: Major, Occu.: Business,R/o. At Shingavhan,Tq.and Dist. Nandurbar 425412.12.Balaji ConstructionThrough its ProprietorVishwanath Mewalal JaiswalAge: Major, Occu.: Business,R/o. At Near Maruti Vyayam ShalaPardeshipura, Nandurbar 42541213.Sagardada ConstructionThrough its ProprietorDilip Madhavrao More,Age: Major, Occu.: Business,R/o. At 19, Hindlaj Mata Nagar,Bhone Road, Nandurbar.14.Bhavesh Tukaram PatelAge: Major, Occu.: Business,R/o. At 25, Yashadhan Colony,Shahada, Dist. Nandurbar.15.Swami Buildcon, NandurbarAge: Major, Occu.: Business,R/o. At Mataji Mandir TalobaRoad 115, Girivihar Colony,Nandurbar 425412... RESPONDENTS……….Ms. Pradnya S. Talekar i/b Talekar and Associates, Advocate forpetitioner.Mr. A. B. Girase, G.P. for respondent Nos.1 and 2.Mr. Sanjeev B. Deshpande, Senior Counsel i/b Mr. Swapnil Patunkar,Advocate (J. P. Legal Associates) for respondent Nos.3, 5, 6, 7, 8, 10,13 and 14.Mr. V. D. Sapkal, Senior Counsel i/b Mr. S. R. Sapkal, Advocate forrespondent Nos.4, 9, 11 and 12.Mr. Rahul S. Pawar, Advocate for respondent No.15.………..[5] WP-15731-2023 with15729-2023.odt CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ. DATE : JANUARY 24, 2024.JUDGMENT (Per Smt. Vibha Kankanwadi, J.) :- .Rule. Rule made returnable forthwith. Heard learned Advocatesfor the appearing parties finally by consent.2.In both these petitions, the issue involved is similar and,therefore, taken up together for disposal.3.The petitioner in Writ Petition No.15731 of 2023 is challengingits disqualification in E-tender Notice No.19 communicated viaimpugned E-mail communication dated 11.12.2023 (Exhibit-J) issuedby respondent No.2, whereas the Petitioner in Writ Petition No.15729of 2023 is challenging its disqualification in E-tender Notice No.17communicated via impugned E-mail communication dated 11.12.2023(Exhibit-J) by respondent No.2.4.The factual matrix as pleaded in the petitions are that thepetitioner – Company in both the petitions is a Class-I Contractor, whohas past experience of having undertaken projects of more than 100Crores and has been in this industry for more than a decade. On09.10.2023, Respondent No.2 - Executive Engineer, Public WorksDepartment, issued a common E-tender Notice No.19 for 29 works[6] WP-15731-2023 with15729-2023.odtand E-tender Notice No.17 for 59 works. The E-tender forms wereavailable from 10.00 a.m. of 03.10.2023 to 6.00 p.m. of 10.10.2023.The technical and financial bids were to be opened on 11.10.2023 at6.00 p.m. in the office of the Executive Engineer, Public WorksDepartment, Nandurbar. The petitioner in both the petitions contendedthat the time for filling the bids was extended upto 17.10.2023 andthe petitioner being a Class-I contractor and more than eligible underthe tender conditions had applied for 28 works from E-tender NoticeNo.19 and for 31 works from E-tender Notice No.17 during 09.10.2023to 17.10.2023. The technical bids were opened on 19.10.2023.Thereafter, the petitioner received a letter/E-mail from respondentNo.2 on 06.11.2023 seeking clarification regarding incompletedocuments submitted by the petitioner along with its bid for E-tenderNotice No.19 and E-tender Notice No.17. It was mentioned in the saidletter that the technical bids were opened on 19.10.2023 and thepetitioners had not submitted some documents i.e. (i) A list ofcompleted and pending works to determine the bid capacity of thepetitioner, (ii) 26AS Form, from 2018-2019 to 2022-2023; and (iii) Ascanned copy of valid certificate as a registered contractor with theGovernment of Maharashtra Public Works Department as perparagraph 1.4.2 of the E-tender document and Government circulardated 21.09.2017. Thereafter, the petitioner replied to thecommunication dated 06.11.2023 stating that there is no mention of[7] WP-15731-2023 with15729-2023.odtForm 26AS in the tender document, so also the petitioner has alreadysubmitted CA Turnover Certificate and furnishing the Tax Audit reportfor the financial year 2022-2023. It is further stated in the said replythat as the tender was for ‘Class IV and above’ and the petitionerswere registered as Unlimited Class Tenderers, the petitioner did notrequire registration to bid for a tender. Thereafter, respondent No.2issued further communication on 08.12.2023 stating that it was foundin the technical scrutiny that the registration certificate uploaded bythe petitioner was invalid (expired) and since the petitioner had failedto submit a ‘Valid Registration Certificate as registered contractor withthe Government of Maharashtra, the petitioner was held ineligible. Itwas futher stated that in the said communication that the petitionershould respond till 11.12.2023 upto 2.00 p.m., failing which it wouldbe presumed that the decision of the scrutiny committee is acceptedby the petitioner. It is the case of the petitioner that in fact there wasno requirement of registration for the contractors having a body ofwork more than Rs.1.5 Crores, it is only for the smaller contractorshaving less than Rs.1.5 Crores work, who were required to beregistered with the Public Works Department. In fact, variousgovernment resolutions have been issued regarding the mandate ofregistration of contractors for different works. The petitioner byshowing legal position submitted a response to the communicationdated 08.12.2023 vide E-mail dated 11.12.2023 and clarified that[8] WP-15731-2023 with15729-2023.odtGovernment Resolution dated 21.09.2017 does not mentionpossession of P.W.D. registration for bidding, for the works uptoRs.1.50 Crores, for those contractors who fulfill the requisites for workbeyond Rs.1.50 Crores. Thereafter, it is contended that respondentNo.2 without considering the reply submitted by the petitioner hasinformed the petitioner regarding its disqualification from the technicalevaluation for E-tender Notice No.19 for the year 2023-2024 and E-tender Notice No.17 for the year 2023-2024 on the ground that thepetitioner has failed to produce the registration certificate. It is thecase of the petitioner that the petitioner was having registrationcertificate in Class I-A for several years and lastly from 06.12.2017 to05.12.2020. The petitioner could not renew the said registration sincethe procedure for registration in all class of contractors, except thoseworking below Rs.1.5 Crores, was terminated after 2017 and noproposals could be submitted. Thereafter, respondent No.2 issued acommon letter dated 11.12.2023 to all the participating biddersinforming them about the opening of financial bid on 12.12.2023 at10.30 a.m. at the department office. The petitioner in both thepetitions contended that on 12/13.12.2023 the technical evaluation forE-tender Notice No.17 for 2023-2024 and on 13/14.12.2023 thetechnical evaluation for the E-tender Notice No.19 for 2023-2024 wereuploaded on the official website of Maharashtra Tenders regardingtheir disqualification for the technical evaluation of the E-Tender Notice[9] WP-15731-2023 with15729-2023.odtNo.17 for the year 2023-2024 and E-tender Notice No.19 for the year2023-2024 respectively. It is contended that the petitioner was neitherpermitted to be present during the opening of financial bids, nor thesame were uploaded on the website of E-tender Notice No.17. Thepetitioner contends that for some of the works only two bidders werefound eligible, yet respondent No.2 has proceeded to open the bidrather than to re-tender the works. It is the case of the petitioner thatthere is no condition in the tender that the bids to be submitted onlyby registered contractors under Rs.1.5 Crores category and even ifthere is any such condition, it would be absurd, as the contractors withmore experience, who would not get the registration in a lower class,could not be excluded from the tender process. The petitioner in boththe petitions further contended that since its past works as well asongoing works and Income Tax Returns do not show the capacity uptoRs.1.5 Crores, the petitioner would not be eligible to a certificate ofregistration in the category of contractors below Rs.1.5 Crores. Thepetitioner is unable to seek registration in its original category ofClass-I contractor as the registration in said categories has beenterminated since 2017 in view of Government Resolution dated16.08.2017 and corrigendum dated 21.09.2017. Thus, there is no gainin saying that the petitioner was required to submit a registrationcertificate since the works are below Rs.1.5 Crores. Hence, thesepetitions.[10] WP-15731-2023 with15729-2023.odt5. In Writ Petition No.15729 of 2023, affidavit-in-reply on behalf ofrespondent No.3, Shirish Mahendra Patil, Sole Proprietor of M/s. RiddhiConstruction, has been filed. Further, in Writ Petition No.15731 of2023, affidavit-in-reply on behalf of respondent No.9, Pratik ChampalalJain, has been filed. The contentions raised in both these affidavits arealmost same and similar. It is contended that no fault could be foundin both the impugned orders which are just, legal and proper in all thesenses, especially when the petitioner failed to submit requisitedocuments. It is further contended that the tender condition ofrequired documents mentioned in clause 2.9.1-A is a mandatorycondition, which compels participants of tender process to submitscanned copy of the Valid Certificate as a Registered Contractor withGovernment of Maharashtra, Public Works Department. The petitionerwas well aware that he does not fulfill the eligibility criteria of thetender condition and now the petitioner is submitting that theregistration certificate is not required for him in the wake ofexperience gained by him. Further, it is contended that the petitionerhas participated in approximately 60 works for which tender wasfloated and at no stretch of imagination it could be digested that thepetitioner was unaware of the mandatory conditions. It has beenfurther contended that the tender works are part of most aspiredproject of Government in Tribal region of Maharashtra. The projectworks shall necessarily be completed in most expeditious manner and,[11] WP-15731-2023 with15729-2023.odttherefore, the present petition has been preferred with intention todelay the project. It has been further contended that the petitionerhas not challenged the tender Condition No.2.9.1-A, but he has triedto pose that he fulfills all tender conditions by submitting invaliddocument. Therefore, the disqualification of the petitioner is legal.6. In Writ Petition No.15729 of 2023, affidavit-in-reply on behalf ofrespondent No.5, Shantaram Sahebrao Patil, has also been filed andhe has reiterated the contentions raised on behalf of respondent No.3and prayed for dismissal of the petition.7.The petitioner has filed rejoinder to the affidavit-in-reply filed byrespondent Nos.3 and 5 in Writ Petition No.15729 of 2023 as well asthe petitioner has filed rejoinder to the affidavit-in-reply filed byrespondent No.9 in Writ Petition No.15731 of 2023 and denied all thecontentions raised on behalf of the respective respondents. 8.Heard learned Advocate Ms. Pradnya S. Talekar for the petitionerin both the petitions, learned Government Pleader Mr. A. B. Girase forrespondent Nos.1 and 2 in both the petitions, learned Senior CounselMr. V. D. Sapkal instructed by learned Advocate Mr. S. R. Sapkal forrespondent Nos.3, 4, 7, 8 and 12 in Writ Petition No.15731 of 2023and for respondent Nos.4, 9, 11 and 12 in Writ Petition No.15729 of2023, learned Senior Counsel Mr. Sanjeev B. Deshpande instructed bylearned Advocate Mr. Swapnil Patunkar (J. P. Legal Associates) for[12] WP-15731-2023 with15729-2023.odtrespondent Nos.5, 6, 9 and 10 in Writ Petition No.15731 of 2023 andfor respondent Nos.3, 5, 6, 7, 8, 10, 13 and 14 in Writ PetitionNo.15729 of 2023 and learned Advocate Mr. Rahul S. Pawar forrespondent No.13 in Writ Petition No.15731 of 2023 and forrespondent No.15 in Writ Petition No.15729 of 2023.9.Learned Advocate for the petitioners in both the petitionsvehemently submitted that the tender that was invited was fordifferent works, but it was in single E-tender notice. In some of thoseworks, the petitioner has filled the bid and the ground on which theirbid has been not accepted by respondent No.2 is that his validregistration certificate as registered contractor with the Government ofMaharashtra, Public Works Department, was not annexed/uploaded.Learned Advocate for the petitioner tried to distinguish therequirement as per Government Resolution dated 16.08.2017 betweenthe works ‘as compared to contractor.’ The wordings of saidGovernment Resolution would show that it was made applicable to thecontractor. It was specifically stated that after 21.08.2017 there willnot be categorization of the contractors in Class III, II, I-C, I-B andI-A. There would be only two types of contractors, one below Rs.1.50Crores and another above that amount and in that, there would be twotypes of contractors below Rs.1.50 Crores as registered andunregistered. When it was made known to the petitioner that he wasrequired to upload the documents as a contractor, he had uploaded the[13] WP-15731-2023 with15729-2023.odtdocuments and then it was said that the duration of the said certificatehad expired on 05.12.2020. In fact, in view of Government Resolutiondated 16.08.2017, there was no further registration as such and,therefore, renewal of the said certificate was not possible. By way ofadditional affidavit, the petitioner has produced the webdocument/Know Your Company KYC Application Form from the websiteof Public Works Department, which says that the contractor should notregister for KYC for Class I, II, III, as those classes are nowunavailable in the system. She also submitted that by adopting thisprocess the respondents had intention to deprive the experiencedcontractors, who could have taken the work of more than Rs.1.50Crores. This classification is arbitrary and, therefore, it can be certainlysaid that on the basis of such classification, the petitioner has beendeprived of participating in the tender process fairly or it can be saidthat the disqualification of the petitioner is arbitrary. She relied on thedecision in Tata Cellular Vs. Union of India, (1994) 6 SCC 651, whereinit has been held that the principles of judicial review would beapplicable to the exercise of contractual powers by Government bodiesin order to prevent arbitrariness or favoritism. She further relied onthe decision in Michigan Rubber (India) Limited Vs. State of Karnatakaand others, (2012) 8 SCC 216, on the same point, that when it comesto the arbitrary and irrational exercise of powers by the executives,the judicial review is available. She further relied on the decision in[14] WP-15731-2023 with15729-2023.odtPawan Hans Helicopters Ltd. Vs. Nidheesh Tours and Travels Pvt. Ltd.,2023 SCC OnLine Del 1574 : (2023) 302 DLT 262 and submits that thetechnicalities and procedural defects which do not go to the root of thematter should not be permitted to defeat a just cause and, therefore,the case cannot be simply dismissed on technical grounds ofprocedural irregularities. She further submitted that though thepetitioner had participated in the tender process, it cannot be said thatthe petitioner cannot challenge the legality or illegality involved. Inorder to support her said submission, she relied on the decision in Dr.(Major) Meeta Sahai Vs. State of Bihar and others, (2019) 20 SCC 17.Further, she relied on the decisions in B. S. N. Joshi and Sons Ltd. Vs.Nair Coal Services Ltd. And others, (2006) 11 SCC 548 and PoddarSteel Corporation Vs. Ganesh Engineering Works and others, (1991) 3Scc 273 and submits that the requirement of registration was notapplicable to the petitioner and, therefore, it cannot be considered asessential requirement and the principles of strict compliance could nothave been then applied. She further relied on the decision in RelianceEnergy Ltd. and Another Vs. Maharashtra State Road DevelopmentCorpn. Ltd. And Others, [(2007) 8 SCC 1]. She relied on paragraphNo.36 of the above decision and submitted that when Article 19(1)(g)of the Constitution of India confers fundamental right to carry onbusiness to a company, then it is entitled to invoke the said doctrine of“level playing field”. The said doctrine provides space within which[15] WP-15731-2023 with15729-2023.odtequally placed competitors are allowed to bid so as to subserve thelarger public interest. She further relied on the decision in AfconsInfrastructure Limited Vs. Nagpur Metro Rail Corporation Limited andanother, (2016) 16 SCC 818, Silppi Constructions Contractors Vs.Union of India and another, (2020) 16 SCC 489 and M/s. AgmatelIndia Private Limited Vs. Resoursys Telecom and others, (2022) 5 SCC362 to support her contention that the Court can intervene when thetender condition has been interpreted mala fide. She, therefore,prayed for quashing the impugned communications disqualifying thepetitioner and allowing the petitioner to take part as well asconsequential reliefs.10.Per contra, learned Senior Counsel Mr. S. B. Deshpandeinstructed by learned Advocate Mr. Swapnil Patunkar (J. P. LegalAssociates) appearing for respondent Nos.5, 6, 9 and 10 in WritPetition No.15731 of 2023 and for respondent Nos.3, 5, 6, 7, 8, 10, 13and 14 in Writ Petition No.15729 of 2023 submitted that the petitionerhad taken part in the tender process knowing fully well what are therequirements and which documents the petitioner was required toupload. It was one of the mandatory condition to produce the saidcertificate and when it has not been uploaded, no fault can be found.Further, the petitioner had taken part in respect of only few works, butthe interim protection is in respect of all the works under the sametender notice and, therefore, it has halted further process. As regards[16] WP-15731-2023 with15729-2023.odtfour works, work order has been issued and the work has progressed.Now, the petitioner cannot be allowed to take part when it has beenrightly disqualified.11.Learned Senior Counsel Mr. V. D. Sapkal instructed by learnedAdvocate Mr. S. R. Sapkal for respondent Nos.3, 4, 7, 8 and 12 in WritPetition No.15731 of 2023 and for respondent Nos.4, 9, 11 and 12 inWrit Petition No.15729 of 2023 submitted that the tender notice itselfmakes it clear that tenders were invited from uksan.khd~r da=kVnkj(registered contractors) and, therefore, it was obvious that only theregistered contractors should participate in the tender process. Thepetitioner has not challenged the Government Resolution dated06.08.2017 by which the earlier classification of the contractors cameto be abolished and only two categories were considered, one belowRs.1.50 Crores and another above the said amount. In the saidGovernment Resolution itself it was made clear as to how registrationapplication can be made online, which documents were required to beuploaded and after completing the said procedure, the registrationcertificate would be available online. Thereafter, by a corrigendum on21.09.2017, it was clarified that for the works upto Rs.1.50 Crores,there is necessity to register contractors and, therefore, theregistration as was available earlier for the works upto Rs.1.50 Croresit would be available. Further, there is Government Resolution dated[17] WP-15731-2023 with15729-2023.odt27.09.2018 which gave instructions to the registered contractors. Thebifurcation was made on the basis of the value of the tender. Anopportunity appears to have been given to the petitioner to uploadethe document, but he has uploaded the contractors registrationcertificate of Class I-A for three works from 06.12.2017 to 05.12.2020.That means it had expired much prior to the tender notice. Petitionercould not produce the document showing the registration was in forceon the date of tender notice. Therefore, the disqualification is legal.12.Learned Senior Counsel Mr. V. D. Sapkal relied on the decision inTata Motors Limited Vs. The Brihan Mumbai Electric Supply andTransport Undertaking (Best) and others, 2023 LiveLaw (SC) 467,wherein it is held that there should not be judicial review incommercial matters, unless a case of arbitrariness, mala fide, bias orirrationality is made out. He further relied on the decision in RamannaDayaram Shetty Vs. The International Airport Authority of India andothers, AIR 1979 SC 1628, wherein in respect of a tender condition, itwas observed that, “on a proper construction what the notice requiredwas that only a person running a registered IInd Class hotel orrestaurant and having at least 5 years’ experience as such should beeligible to submit a tender. This was a condition of eligibility and it isdifficult to see how this condition could be said to be satisfied by anyperson who did not have five years’ experience of running a IInd Class[18] WP-15731-2023 with15729-2023.odthotel or restaurant. The test of eligibility laid down was an objectivetest and not a subjective one.” He further relied on the decision inM/s. N. G. Projects Limited Vs. Vinod Kumar Jain and others, 2022LiveLaw (SC) 302, which was then relied by this Court in M/s.Pharmaveda (I) Pvt. Ltd. Vs. Chief Executive Officer, Zilla Parishad,Nandurbar, in Writ Petition No.14938 of 2023 decided by this Court on18.01.2024.13.Learned Government Pleader Mr. A. B. Girase submitted that it isnot the case that the entire registration procedure has beenwithdrawn. The registration is still compulsory for those contractors,whose bid capacity is below Rs.1.50 Crores. To save the governmentmoney, a collective tender was published, but the bidders wereentitled to submit bid in respect of one or more and not all thebids/work. Accordingly, even the petitioner had filed the bid for fewworks, it was not in respect of all. The bids were invited from theregistered contractors and when in spite of opportunity given, themandatory condition has not been fulfilled. The petitioner has beendisqualified. There is no question of mala fides in this case. 14.It appears from the documents that by communication dated06.11.2023 by the Deputy Executive Engineer, Public WorksDepartment, Nandurbar to the petitioner, the petitioner was calledupon to cure the defects i.e. to place the documents on record which[19] WP-15731-2023 with15729-2023.odtwere not uploaded or which were incomplete. There were three suchdocuments, which were found to be having defect. The first was toproduce the update work done by the petitioner as it was not possibleto calculate the bid capacity and, therefore, the certificates in respectof work done were called. Secondly, the petitioner was called toproduce 26AS Form between 2018-2019 to 2022-2023. The third wasthat no document in the form of scanned copy of valid certificate as aregistered contractor with the Government of Maharashtra, PublicWorks Department was appended, which was compulsory in view ofGovernment Resolution dated 21.09.2017 for the work upto Rs.1.50Crores. In response to the same, it appears that E-mail was sent bythe petitioner on 11.11.2023, wherein it was stated that in respect ofform 26-AS, they have submitted the CA turnover certificate and alsothe Tax Audit report for the financial year 2022-2023. According tothe petitioner, Form 26AS is not required for the tender as it was notmentioned in the technical tender documents. It is then said that inthe tender notice it was stated that the tenderer must be Class IV andabove and they had registered as unlimited class tenderer as per theGovernment Resolution, therefore, they do not require registration tobid tender. Thereafter, it appears that a document was still uploadedwhich was in respect of the registration between 06.12.2017 to05.12.2020. Again by communication dated 08.12.2023, it was madeknown to the petitioner that the registration duration has expired and[20] WP-15731-2023 with15729-2023.odtthe said condition to upload the certificate is a mandatory requirementand, therefore, the petitioner would be ineligible, yet if petitioner wantto say something, then he can canvass the say upto 2.00 p.m. on11.12.2023. It appears that still there was no compliance andultimately the petitioner has been disqualified. Now, thisdisqualification has been challenged. 15.Before considering the factual matrix, it is required to beconsidered that the petition is on two counts, firstly to challenge thepetitioner’s own disqualification and secondly, to challenge thequalification of other respondents We would like to rely on theobservations from the recent decision by the Hon’ble Supreme Court inM/s. N.G. Projects Limited (Supra), in which the earlier decisions havebeen taken note of and 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 theexpertise 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 whether thedecision-making process is after complying with the[21] WP-15731-2023 with15729-2023.odtprocedure 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.”16.We are aware of the decision in Jagdish Mandal Vs. State ofOrissa, (2007) 14 SCC 517, wherein Hon’ble Supreme Court has heldthat :-“22.Judicial review of administrative action is intendedto prevent arbitrariness, irrationality; unreasonableness, biasand mala fides. Its purpose is to check whether choice ordecision is made “lawfully” and not to check whether choiceor decision is “sound”. When the power of judicial review isinvoked in matters relating to tenders or award of contracts,certain special features should be borne in mind. A contractis a commercial transaction. Evaluating tenders andawarding contracts are essentially commercial functions.Principles of equity and natural justice stay at a distance. Ifthe decision relating to award of contract is bona fide and isin public interest, courts will not, in exercise of power ofjudicial review, interfere even if a procedural aberration orerror in assessment or prejudice to a tenderer, is made out.The power of judicial review will not be permitted to beinvoked to protect private interest at the cost of public[22] WP-15731-2023 with15729-2023.odtinterest, or to decide contractual disputes. The tenderer orcontractor with a grievance can always seek damages in acivil Court. Attempts by unsuccessful tenderers withimaginary grievances, wounded pride and business rivalry, tomake mountains out of molehills of sometechnical/procedural violation or some prejudice to self, andpersuade courts to interfere by exercising power of judicialreview, should be resisted. Such interferences, eitherinterim or final, may hold up public works for years, or delayrelief and succour to thousands and millions and mayincrease the project cost manifold. Therefore, a Courtbefore interfering in tender or contractual matters inexercise of power of judicial review, should pose to itself thefollowing questions :(i)Whether the process adopted or decision made bythe authority is mala fide or intended to favour someone;orWhether the process adopted or decision made is soarbitrary and irrational that the court can say: “the decisionis such that no responsible authority acting reasonably andin accordance with relevant law could have reached”;(ii)Whether public interest is affected. If the answers are in the negative, there should be nointerference under Article 226. Cases involving blacklistingor imposition of penal consequences on atenderer/contractor or distribution of State largesse(allotment of sites/shops, grant of licences, dealerships andfranchises) stand on a different footing as they may requirea higher degree of fairness in action.”17.Thus, taking into consideration the well settled law on this point,we have limited scope. We are to see whether the petitioner has[23] WP-15731-2023 with15729-2023.odtdemonstrated firstly that the petitioner was eligible, as it had compliedwith all the tender requirements, then only we can go to the secondaspect i.e. challenge by the petitioner to the decision of respondentNo.2 to qualify other respondents in the technical bid, otherwise thecourse is open to the petitioner as aforesaid in M/s. N.G. ProjectsLimited (Supra) and Jagdish Mandal (Supra).18.At the outset, we would like to say that the petitioner has notchallenged the Government Resolution dated 16.08.2017 in specificworks in the petition. Rather, the petitioner’s pleading and submissionon behalf of the petitioner would show that it has been tried to beinterpreted to show as to how it is not applicable to the petitioner, whowas in Class IV category i.e. for unlimited cost. Therefore, we need notgo into the aspect as to whether the said Government Resolutioncreates unnecessary classification and there was no rational behindthe same. It will not be out of place to mention here that we had madea query to learned Government Pleader for putting this condition thatfor a particular amount the registration is required and to thecontractors having capacity of more than Rs.1.50 Crores, theregistration is not required. He draws our attention to thePreamble/History/Prastavana of Government Resolution dated16.08.2017 and submits that to have more competition and a fair oneand to protect the class of persons having small capacity, thisclassification appears to have been made. As aforesaid, when the said[24] WP-15731-2023 with15729-2023.odtGovernment Resolution dated 16.08.2017 and the Corrigendumthereto on 21.09.2017 is not under challenge, we need not have adeliberation on the same. The plain reading of the GovernmentResolution and Corrigendum would make it clear that the contractorupto Rs.1.50 Crores i.e. the capacity should possess the registration ofthe Public Works Department of the Government. Even the procedurehas been stated as to how the registration can be applied and can besought. Therefore, it cannot be taken that registration is no longeravailable as tried to be contended on behalf of the petitioner. If weconsider each work in the tender notice, then it is below the saidrequired amount. It is to be noted that in the tender itself it is statedthat the tender is invited from registered contractors and the saidtender was for 29 and 59 works respectively. If the petitioner had anyobjection as regards clubbing or if there was confusion in the mind ofthe petitioner, it could have been got clarified or the tender itself couldhave been then challenged on the basis that it is for a class ofpersons. Now, it is said that the petitioner has been excluded. Thissubmission cannot be accepted, as there was no ambiguity in thetender conditions or tender itself. The petitioner participated in thesame knowing it fully well that it was for the registered contractorsand one of the term was to submit a valid registration issued by thecompetent authority to be uploaded. When knowing fully well thepetitioner participates, then upon disqualification on the inherent[25] WP-15731-2023 with15729-2023.odtdefect the petitioner cannot say that he has been ousted or cannotchallenge the term or interpret it in different way. We do not find anyillegality or error in the disqualification of the petitioner.19.Objection has now been raised on behalf of the petitioner thatwhen the matter was on board on 22.12.2023, statement was madeby learned Government Pleader, on instructions, that though thefinancial bids have been opened and the bidders, who are notqualified, have been permitted to deposit earnest amounts, workorders have not been issued. On the basis of said statement, thenrespondents were directed to defer the allotment of work orders untilfurther hearing and orders in this matter, yet work orders have beenissued. Learned Government Pleader now, on instructions, says thatin fact tender was for 132 works and now, the work order is issuedonly in four matters. Taking into consideration the large number ofmatters in which work orders have not been issued, he had made thesaid statement. In fact, it appears that it was not specifically broughtto the notice of this Court that the petitioner had applied for 31 worksin E-tender Notice No.17 and for 28 works in E-tender Notice No.19only. If the petitioner had not participated in all 132 works, interimrelief could not have been asked for all the works. Be that as it may,now we have come to the conclusion that the disqualification of thepetitioner in both the matters was justified and, therefore, thepetitions should fail.[26] WP-15731-2023 with15729-2023.odt20.No case is made out for exercising the constitutional powers ofthis Court and, therefore, both the writ petitions stand dismissed.21.Interim relief, thus, stand vacated.22.Rule is discharged.[ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGELATER ON :-.After the pronouncement of Judgment, learned Advocate for thepetitioner seeks continuation of the interim relief granted earlier for aperiod of four weeks. However, taking into consideration the reasonsmentioned in the Judgment upholding the disqualification of thepetitioner, the interim relief cannot be extended. The oral prayer is,therefore, rejected. [ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[27]