Bombay High Court
Spm Drugs (P) Ltd vs The State Of Maharashtra on 14 December, 2009
Bench: Naresh H. Patil, K.U. Chandiwal
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7823 OF 2009
Date of decision:
For approval and signature
HON'BLE MR.JUSTICE NARESH H PATIL
HON'BLE MR. JUSTICE K.U.CHANDIWAL
1. Whether the Reporters of Local Papers Yes/No.
may be allowed to see the Judgment ?
2. To be referred to the Reporter or not ? No
3. Whether Their Lordships wish to see No.
the fair copy of the Judgment ?
4. Whether this case involves a substantial? No.
question of law as to the interpretation
of the Constitution of India, 1950, or
any order made thereunder ?
5. Whether it is to be circulated to the No.
Civil Judges ?
6. Whether the case involves an important No
question of law and whether a copy of
the Order should be sent to Bombay,
Goa and Nagpur Office ?
(A.G. PARALIKAR)
Private Secretary
agp/office/wp7823-09
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2
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7823 OF 2009
1. SPM DRUGS (P) LTD.
SF 51/1 Main road K.R.Palayam,
Bhavani - 638 301 (TN)
through its power of attorney holder,
Shri Sharad Chatrabhuj Rathi,
(Proprietor of Chandan Diagnostic
and Surgical),
age 52 yrs. occ. Business,
r/o 192, Bhikamchand Jain Market,
Jalgaon.
2. STERICAT GUTSTRINGS (P) LTD.
Plot no.169, sector -4, IMT, Manesar,
Gurgaon, Haryana
Through its power of attorney holder
Shri Sharad Chatrabhuj Rathi,
(Proprietor of Chandan Diagnostic
and Surgical)
age 52 yrs. Occ. Business,
r/o 192, Bhikamchand Jain Market
Jalgaon.
...PETITIONERS
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Medical Education and Research
Department, Mantralaya,
Mumbai 32
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3
2. The Director,
Medical Education and Research
Department,
4th floor, Government Dental
College Building,
Saint George Hospital Campus,
V.T.Mumbai 400 001
3. Assistant Director (Purchase),
Drug Purchase Cell,
4th floor, Government Dental
College Building,
Saint George Hospital Campus,
V.T. Mumbai 400 001
ig ...RESPONDENTS
...
Shri P.M.Shah, Senior Counsel for
petitioner.
Shri N.B.Khandare, G.P., for respondent
State.
...
CORAM : NARESH H. PATIL
AND
K.U.CHANDIWAL, J.
DATE :
***
Dt.of reserving
the judgment:3.12.2009
Dt.of pronouncing
the judgment:
...
JUDGMENT: (Per K.U.Chandiwal, J.)
1. Heard.
2. Rule. With the consent of learned
Counsel for the parties, Rule is made returnable
and heard forthwith.
3. The petitioners feel that the Government
Resolution dt.17.6.2009 and the tender form
published by the Directorate of Medical Education
and Research ( For short, "DMER"), finalized for
the Rate Contract, which is valid for a period of
two years, display stringent terms and conditions
which are unjust and illegal.
4.
terms and
The petitioners feel that the following
conditions of the
Tender form are unjust:
"(i) Condition No.1 for of new
registration to the tenderer who has
already possessing and holding valid
registration certificate issued by DMER.
(ii) Condition No.1 (turn over
clause) in respect of annual average turn
over for the last 3 financial years shall
be minimum Rs.25 Crores for supply of
injections, minimum Rs.10 Crores for
supply of disinfectants and minimum Rs.25
lakhs for supply of surgical drssing.
(iii) Condition No.2.7 about the
requirement of W.H.O. G.M.P. Certificate.
(iv) Condition No.9 of the security
deposit @ 16 % of the estimated value of
the quantity per year in the form of bank
guarantee. "
5. According to the petitioner, when
petitioner no.1 is already holding the valid
registration certificate issued by the same
authority and the validity period of the said
certificate is not expired, there was no
eventuality to direct petitioner no.1 to seek a
new registration from the same authority. The
turnover clause is not uniform as, in the States
of Tamilnadu, Madhya Pradesh and Karnataka, the
condition of minimum annual turnover is only upto
Rs.2 crores.
6. The condition of heavy turnover is,
apparently, incorporated, with an intention to
award the tender to multi-nationals, who are
favourable to the respondents. The condition of
security deposit is contrary to the arrangement
made by different States as, in few of the
States, it is only 5 per cent of the estimated
value of the quantity per year.
7. The requirement of valid certificate of
W.H.O. G.M.P. Certificate ( condition no.2.7) is
not warranted, the rate contract is only for
supply of medicines and surgical items. In
Maharashtra State, the tender form does not
expand its scope for exporting of the medicines
or the surgical items. Consequently, the
requirement of W.H.O. G.M.P. Certificate is not
warranted. Hence, these actions are questioned.
8. Elaborate submissions were advanced on
the high-handedness of the authorities and the
position of law. Learned Government Pleader
contended that the petitioner no.2 has no role in
the matter and no cause to file the petition.
The power of attorney of the petitioner no.1 is
the same person who was representing the
petitioners in another petition; being Writ
Petition No.5890/2009. (Page No.123, para 7)
...
(THIS PARAGRAPH TO BE TAKEN AT
We find, there is no contract as yet
between the petitioner no.1 or the Government.
The terms of the tender, referred above, will
have to be assessed, as to whether they
demonstrate any high-handedness or unjustness.
On analysis of factual matrix, we find they do
not project de hors to the provisions or the
powers vested in the Governmental authorities.
The terms cannot be branded to be
unconstitutional. There is no betrayal in these
terms to the normal procedure, to cause
favouritism to anybody else. )
( K.U.CHANDIWAL) (NARESH H.PATIL)
JUDGE JUDGE
agp/
