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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1744 OF 2016
PETITIONER :- Anand Singh Sanwal, Aged about 22 years,
Engineers and Contractors, R/o Allapalli
Road, Ballarpur, District-Chandrapur.
E-mail:[email protected]
...VERSUS...
RESPONDENTS :- 1. Municipal Council, Ballarpur, Through its
ig Chief Office, Ballarpur, Distt.Chandrapur.
2. S.S.Khan, R/o Dadabhai Nauroji Ward,
Ballarpur, Dist. Chandrapur.
3. State of Maharashtra, through its Secretary,
Urban Development, Mantralaya, Mumbai-
32.
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Mr. Anjan De, counsel for the petitioner.
Mr.M.I.Dhatrak, counsel for the respondent No.1.
None for the respondent No.2.
Mr. H.D.Dubey, Asstt.Govt.Pleader for the respondent No.3.
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WRIT PETITION NO. 1845 OF 2016
PETITIONER :- Anand Singh Sanwal, Aged about 22 years,
Engineers and Contractors, R/o Allapalli
Road, Ballarpur, District-Chandrapur.
E-mail:[email protected]
...VERSUS...
RESPONDENTS :- 1. Municipal Council, Ballarpur, Through its
Chief Office, Ballarpur, Distt.Chandrapur.
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2. Sameer Mohanrao Kene, R/o. House
No.415, C/o. Mohanrao Kene, Kanamwar
Ward, Near Jabhim Chowk, Ballarpur,
Distt.Chandrapur.
3. State of Maharashtra, through its Secretary,
Urban Development, Mantralaya, Mumbai-
32.
---------------------------------------------------------------------------------------------------
Mr. Anjan De, counsel for the petitioner.
Mr.M.I.Dhatrak, counsel for the respondent No.1.
None for the respondent No.2.
Mrs.K.R.Deshpande, Asstt.Govt.Pleader for the respondent No.3.
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WRIT PETITION NO. 1846 OF 2016
PETITIONER :- Anand Singh Sanwal, Aged about 22 years,
Engineers and Contractors, R/o Allapalli
Road, Ballarpur, District-Chandrapur.
E-mail:[email protected]
...VERSUS...
RESPONDENTS :- 1. Municipal Council, Ballarpur, Through its
Chief Office, Ballarpur, Distt.Chandrapur.
2. M/s. Sanjay Builders, C/o Sanjay Khatod,
Flat No.D1, Maharaja Apartment,
Gaurakshan Ward, Ballarpur, Dist.
Chandrapur.
3. State of Maharashtra, through its Secretary,
Urban Development, Mantralaya, Mumbai-
32.
---------------------------------------------------------------------------------------------------
Mr. Anjan De, counsel for the petitioner.
Mr.M.I.Dhatrak, counsel for the respondent No.1.
None for the respondent No.2.
Mr.N.R.Patil, Asstt.Govt.Pleader for the respondent No.3.
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WRIT PETITION NO. 1847 OF 2016
PETITIONER :- Anand Singh Sanwal, Aged about 22 years,
Engineers and Contractors, R/o Allapalli
Road, Ballarpur, District-Chandrapur.
E-mail:[email protected]
...VERSUS...
RESPONDENTS :- 1. Municipal Council, Ballarpur, Through its
Chief Office, Ballarpur, Distt.Chandrapur.
2. Parvinder Singh Arora, R/o. Knamwar
ig Ward, House No.7/329, Near Jaibhim Ward,
Ballarpur, Dist. Chandrapur.
3. State of Maharashtra, through its Secretary,
Urban Development, Mantralaya, Mumbai-
32.
---------------------------------------------------------------------------------------------------
Mr. Anjan De, counsel for the petitioner.
Mr.M.I.Dhatrak, counsel for the respondent No.1.
None for the respondent No.2.
Mr.N.R.Patil, Asstt.Govt.Pleader for the respondent No.3.
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WRIT PETITION NO. 1848 OF 2016
PETITIONER :- Anand Singh Sanwal, Aged about 22 years,
Engineers and Contractors, R/o Allapalli
Road, Ballarpur, District-Chandrapur.
E-mail:[email protected]
...VERSUS...
RESPONDENTS :- 1. Municipal Council, Ballarpur, Through its
Chief Office, Ballarpur, Distt.Chandrapur.
2. S.R.Bahuriya, R/o. Subhash Nagar Ward,
Ballarpur, Dist. Chandrapur.
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3. State of Maharashtra, through its Secretary,
Urban Development, Mantralaya, Mumbai-
32.
---------------------------------------------------------------------------------------------------
Mr. Anjan De, counsel for the petitioner.
Mr.M.I.Dhatrak, counsel for the respondent No.1.
None for the respondent No.2.
Mr.P.S.Tembhare, Asstt.Govt.Pleader for the respondent No.3.
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WRIT PETITION NO. 1855 OF 2016
PETITIONER :- ig Anand Singh Sanwal, Aged about 22 years,
Engineers and Contractors, R/o Allapalli
Road, Ballarpur, District-Chandrapur.
E-mail:[email protected]
...VERSUS...
RESPONDENTS :- 1. Municipal Council, Ballarpur, Through its
Chief Office, Ballarpur, Distt.Chandrapur.
2. S.S.Khan R/o. Dadabhai Nauroji Ward,
Ballarpur, Dist. Chandrapur.
3. Hussain Construction, C/o. Hussain Shakir
Badri, Near Bank of India, Allapalli Road,
Bamni, Ballarpur-442701.
4. State of Maharashtra, through its Secretary,
Urban Development, Mantralaya, Mumbai-
32.
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Mr. Anjan De, counsel for the petitioner.
Mr.M.I.Dhatrak, counsel for the respondent No.1.
None for the respondent Nos.2 and 3.
Mr. P.S.Tembhare, Asstt.Govt.Pleader for the respondent No.4.
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WRIT PETITION NO. 1856 OF 2016
PETITIONER :- Anand Singh Sanwal, Aged about 22 years,
Engineers and Contractors, R/o Allapalli
Road, Ballarpur, District-Chandrapur.
E-mail:[email protected]
...VERSUS...
RESPONDENTS :- 1. Municipal Council, Ballarpur, Through its
Chief Office, Ballarpur, Distt.Chandrapur.
2. Sonal Ishwar Gedam, R/o. Knamwar Ward,
ig Jaibhim Chowk, Near Dr.Bawne House, Post
Ballarpur, Dist. Chandrapur - 42701.
3. State of Maharashtra, through its Secretary,
Urban Development, Mantralaya, Mumbai-
32.
---------------------------------------------------------------------------------------------------
Mr. Anjan De, counsel for the petitioner.
Mr.M.I.Dhatrak, counsel for the respondent No.1.
None for the respondent No.2.
Mrs. A.R.Kulkarni, Asstt.Govt.Pleader for the respondent No.3.
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WRIT PETITION NO. 1857 OF 2016
PETITIONER :- Anand Singh Sanwal, Aged about 22 years,
Engineers and Contractors, R/o Allapalli
Road, Ballarpur, District-Chandrapur.
E-mail:[email protected]
...VERSUS...
RESPONDENTS :- 1. Municipal Council, Ballarpur, Through its
Chief Office, Ballarpur, Distt.Chandrapur.
2. Subhash Togarwar, R/o. Gorakshan Ward,
FDCM Road, Ballarpur, Dist. Chandrapur.
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3. State of Maharashtra, through its Secretary,
Urban Development, Mantralaya, Mumbai-
32.
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Mr. Anjan De, counsel for the petitioner.
Mr.M.I.Dhatrak, counsel for the respondent No.1.
None for the respondent No.2.
Mr.N.H.Joshi, Asstt.Govt.Pleader for the respondent No.3.
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WRIT PETITION NO. 1858 OF 2016
PETITIONER :- Anand Singh Sanwal, Aged about 22 years,
ig Engineers and Contractors, R/o Allapalli
Road, Ballarpur, District-Chandrapur.
E-mail:[email protected]
...VERSUS...
RESPONDENTS :- 1. Municipal Council, Ballarpur, Through its
Chief Office, Ballarpur, Distt.Chandrapur.
2. Dvivedi Jayprakash Triloknath, R/o
Ballarpur, Dist.Chandrapur,
3. Sheikh Salim Abdul Wahab, R/o. Shree Ram
Ward, Near Sawari Bangla, Ballarpur-
442701.
4. S.R.Bahuriya, R/o. Subhash Nagar Ward,
Ballarpur.
5. State of Maharashtra, through its Secretary,
Urban Development, Mantralaya, Mumbai-
32.
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Mr. Anjan De, counsel for the petitioner.
Mr.M.I.Dhatrak, counsel for the respondent No.1.
None for the respondent Nos.2, 3 and 4.
Mr. H.D.Dubey, Asstt.Govt.Pleader for the respondent No.5.
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CORAM : SMT. VASANTI A. NAIK &
V. M.DESHPANDE, JJ.
DATED : 04.05.2016 O R A L J U D G M E N T (Per Smt.Vasanti A. Naik, J.) Since the issue involved in these writ petitions is identical and since by these writ petitions, the petitioner has challenged his disqualification in the technical bid, they are heard together and are decided by this common judgment.
Rule. Rule made returnable forthwith. The writ petitions are heard finally as a notice for final disposal was issued to the respondents and all the respondents are duly served.
The respondent, Municipal Council, Ballarpur had floated an e-tender on 15/01/2016 for construction work of WBM Road strengthening, cement concrete drains and cement concrete roads in Ballarpur. Tenders were called for different works that were mentioned in the e-tender notice and the petitioner had applied for ten such works.
The bids were required to be submitted by the bidders in two envelops, the envelop No.1, relating to the technical bid and the envelop No.2, relating to the financial bid. The envelop No.1 was required to be opened first with a view to verify whether the contents were as per the ::: Uploaded on - 06/05/2016 ::: Downloaded on - 30/07/2016 00:53:44 ::: 8/15 0405wp1744.16&oths-Judgment requirement. The envelop No.2 was required to be opened immediately after opening the envelop No.1 only if the contents of envelop No.1 were found to be in order and were accepted. It is the case of the petitioner that the bid of the petitioner was the lowest in respect of all works. According to the petitioner, in respect of all works, the petitioner had quoted the bid that was lower than the estimated price, whereas all the other tenderers had submitted the bids that were above the estimated price. Though the bid of the petitioner was lowest, as per the disclosure made by the Municipal Council relating to the price bids offered by the bidders, it is the case of the petitioner that the respondent-Municipal Council refused to open envelop No.2 of the petitioner for all the concerned works on the ground that the petitioner had not enclosed the employees provident fund registration certificate along with the tender. It is the case of the petitioner that though the other bidders had also not submitted the employees provident fund registration certificate, that was valid on the date of submission of the tenders and had also not submitted Form 5A, if the period of validity had expired, the respondent No.1-Municipal Council rejected the objection of the petitioner in regard to the illegal acceptance of the employees provident fund registration certificate of the other tenderers, that was not valid on the date of submission of the tender. According to the petitioner, though in view of the Government Resolution, dated 29/12/2005, a fresh tender is liable to be issued, if bids of more than ::: Uploaded on - 06/05/2016 ::: Downloaded on - 30/07/2016 00:53:44 ::: 9/15 0405wp1744.16&oths-Judgment the estimated price are received, the Municipal Council did not cancel the process initiated by the such tender notice and did not float a fresh tender, though all the other bidders had quoted a bid of more than the estimated price. Since the bids of the petitioner were rejected for all the contracts in view of the failure on the part of the petitioner to enclose the employees provident fund registration certificate along with the tender, the petitioner has filed these petitions challenging the action on the part of the respondent-Municipal Council of refusing to open the financial bid of the petitioner while opening the financial bids of the other tenderers that had not complied with the condition of submission of a valid employees provident fund registration certificate along with the tender.
Shri De, the learned counsel for the petitioner, submitted by taking this Court through the tender conditions that an employees provident fund registration certificate was required to be submitted along with the tender as per condition No.4 appended to the tender. It is stated that though the petitioner admittedly did not tender the employees provident fund registration certificate along with the tender, the same was submitted within two days. It is stated that the other tenderers/bidders had submitted the employees provident fund registration certificate, of which the validity period has expired. It is submitted that the other bidders had also not tendered a copy of the ::: Uploaded on - 06/05/2016 ::: Downloaded on - 30/07/2016 00:53:44 ::: 10/15 0405wp1744.16&oths-Judgment application seeking the employees provident fund registration certificate with further validity as mentioned in condition No.4. It is submitted that in view of the wrongful opinion secured by the respondent-
Municipal Council, the technical bid of the petitioner was disqualified while the respondent-Municipal Council illegally accepted the bids of the other bidders, though they were not supported with the necessary documents. It is submitted that when the respondent-Municipal Council had rejected the bid of the petitioner on the ground that the petitioner had not tendered the employees provident fund registration certificate along with the bid, the respondent-Municipal Council could not have accepted the employees provident fund registration certificates tendered by the other bidders, though the said certificates were not valid on the date of submission of the tender and their validity period had expired.
It is submitted by placing reliance on Clause-45 of the Government Resolution, dated 29/12/2005 that it was necessary for the Municipal Council to cancel the tender process initiated in pursuance of the tender notice, dated 15/01/2016, as all the bidders, except the petitioner had submitted the bid that was higher than the estimated price. It is stated that a direction be issued against the respondent-Municipal Council to open the financial bid of the petitioner.
Shri Dhatrak, the learned counsel for the respondent No.1-
Municipal Council, supported the action of the Municipal Council. It is ::: Uploaded on - 06/05/2016 ::: Downloaded on - 30/07/2016 00:53:44 ::: 11/15 0405wp1744.16&oths-Judgment submitted that since the petitioner had admittedly not submitted the employees provident fund registration certificate at the time of submission of the tender/bid, the technical bid of the petitioner was disqualified. It is submitted that as per the tender conditions, the financial bid could have been opened only if the Municipal Council was satisfied that the technical bid complied with the requirements. It is submitted that the other bidders had submitted the employees provident fund registration certificate and hence, their financial bids were opened. It is stated that after seeking the legal opinion, the Municipal Council checked from the Employees Provident Fund portal whether the registration of the other bidders was still in existence or not and the Municipal Council secured the knowledge that there was a valid registration with the other bidders on the date of submission of the tender. The learned counsel sought for the dismissal of the writ petition.
Though the successful bidders have been joined as party respondents to each of the petitions, none appears on their behalf, despite service.
On hearing the learned counsel for the parties and on a perusal of the documents annexed to the writ petitions including the tender conditions, it appears that the action on the part of the respondent-Municipal Council in opening the financial bids of the other ::: Uploaded on - 06/05/2016 ::: Downloaded on - 30/07/2016 00:53:44 ::: 12/15 0405wp1744.16&oths-Judgment tenderers, while refusing to open the financial bid of the petitioner, is clearly illegal and arbitrary. As per the tender condition, the financial bid could have been opened only after the Municipal Council was satisfied that the technical bid contained the documents that were required to be tendered in envelop No.1. It appears from a reading of condition No.4 of the tender notice that it was necessary for every tenderer to submit the employees provident fund registration certificate along with the tender. Condition No.4 further provides that if the employees provident fund registration certificate was not possessed by a tenderer at the time of submission of the bid, it was necessary for the tenderer/bidder to enclose a copy of the application, made to the concerned Authority under the Employees Provident Fund Act for grant of employees provident fund certificate and then submit the employees provident fund registration certificate to the respondent-Municipal council within a period of two months. Admittedly, the petitioner had not submitted the employees provident fund registration certificate or a copy of an application that was made to the Employees Provident Fund Authorities for grant of employees provident fund registration certificate along with the tender and the same was submitted two days later. Also, it is clear from the documents annexed to the writ petitions that the other bidders had also not submitted the employees provident fund registration certificate that was valid on the date of submission of the tender. The period of validity of the employees provident fund ::: Uploaded on - 06/05/2016 ::: Downloaded on - 30/07/2016 00:53:44 ::: 13/15 0405wp1744.16&oths-Judgment registration certificate that was enclosed by the other bidders had expired before the submission of the tender. The validity of the documents submitted by the other bidders/tenderers relating to the Provident Fund Code Number Intimation had expired on the date of submission of the tender. It is apparent from the documents that were submitted by the other bidders that the validity of the Provident Fund Code Number in respect of the employees provident fund registration certificate had expired before the bid was submitted by the other tenderers and as per Clause No.3 of the document supplied by the other tenderers, Form 5A generated through the portal at the time of registration, was not supplied, though necessary. The respondent-
Municipal Council could not have accepted the said documents of which the period of validity had expired and that were not supported with the document/Form 5A that could be generated through the portal. It is clear that the other bidders/tenderers had also not supplied a valid employees provident fund registration certificate at the time of submission of their bids. However, illegally the respondent Municipal Council, undertook an exercise of finding out from the Employees' Provident Fund website portal whether there was a valid registration in favour of the other bidders or not while refusing to accept the valid registration certificate that was offered by the petitioner just a couple of days after the submission of the tender. If the filing of a particular document was necessary and if the necessary document was not filed, ::: Uploaded on - 06/05/2016 ::: Downloaded on - 30/07/2016 00:53:44 ::: 14/15 0405wp1744.16&oths-Judgment the Municipal Council could not have made an endeavour to find out whether the concerned tenderer actually possesses the document or not.
This cannot be done specially in a case where the Municipal Council has refused to permit the petitioner to submit the relevant document within a couple of days from the date of submission of the tender. If the other tenderers had also not submitted a valid document at the time of submission of their bids and if the Municipal Council had undertaken an exercise to find out whether the other bidders did possess a valid employees provident fund registration certificate on the date of submission of the tender, on parity, an opportunity was also required to be granted to the petitioner to produce the relevant certificate. If the petitioner's financial bid was not opened, the financial bids of the other bidders also could not have been opened, as the documents tendered by them, in lieu of the employees provident fund registration certificate was not valid on the date of submission of the bid as the validity period of the said document had expired and the document was also not accompanied by Form-5A, that was required to be submitted as per Clause-3 of the said document. We find that the action on the part of the respondent-Municipal Council in refusing to open the financial bid of the petitioner, while opening the financial bids of the other bidders, is arbitrary. In the circumstances of the case, it would be necessary to quash the tender process, so that the respondent-Municipal Council could issue a fresh tender, if necessary.
::: Uploaded on - 06/05/2016 ::: Downloaded on - 30/07/2016 00:53:44 :::15/15 0405wp1744.16&oths-Judgment Hence, for the reasons aforesaid, the writ petitions are partly allowed. The tender process initiated by the respondent No.1-
Municipal Council in respect of allotment of work that relates to these petitions is quashed and set aside. The Municipal Council is free to issue a fresh tender, if necessary. Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
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