Bombay High Court
M/S Krushna Kumar Gokulchand Thr. ... vs The State Of Maharashtra Thr. ... on 23 August, 2016
Bench: B.R. Gavai
WP2202.16 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.2202 OF 2016.
PETITIONER: M/s Krushna Kumar Gokulchand,
a registered Partnership Firm having
its office at New Radha Kisan Plots,
Krishnakunj, Akola through its Partnership
Mr.Krushna Kumar s/o Gokulchand Sharma
aged about 43 years, Occu: Business, R/o
New Radha Kisan Plots, Krishnakunj, Akola.
: VERSUS :
RESPONDENTS: 1) State of Maharashtra,
through its Secretary, Department of
Food, Civil Supplies and Consumer
Protection, Mantralaya Annex, Mumbai-32.
2) The Collector, Buldhana.
3) The District Supply Officer, Buldhana.
4) Shrinath Transport Company,
through its Proprietor Shri Pannalalji
Chokhelaji Gupta, Pravin Nagar, Near
Pathapustak Office, Amravati, through
its Power of Attorney holder Satish
Chokhelalji Gupta.
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Mr.C.S.Kaptan, Senior Advocate with Mr.A.A.Naik Adv. with
Mr.Rohit Joshi, Adv. for the petitioner.
Mr.Ambarish Joshi, AGP for respondent nos.1 to 3.
Mr.A.S.Kilor, Advocate for respondent no.4.
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WP2202.16 2
WRIT PETITION NO.4663 OF 2016.
PETITIONER: M/s Krushna Kumar Gokulchand,
a registered Partnership Firm having
its office at New Radha Kisan Plots,
Krishnakunj, Akola through its Partnership
Mr.Krushna Kumar s/o Gokulchand Sharma'
aged about 46 years, Occu: Business, R/o
New Radha Kisan Plots, Krishnakunj, Akola.
: VERSUS :
RESPONDENTS: 1) State of Maharashtra,
through its Secretary, Department of
Food, Civil Supplies and Consumer
Protection, Mantralaya Annex, Mumbai-32.
2) The Collector, Buldhana.
3) The District Supply Officer, Buldhana.
4) Pannalalji s/o Ghokhelalji Gupta,
aged - Major, Proprietor, Shrinath
Transport Company, Pravin Nagar,
Near Pathyapustak Office, Amravati,
Tq. and Distt.Amravati.
5) Vasudeo s/o Husanlal Agrawal,
aged Major, Proprietor, M/s Vasudeo
Husanlal Agrawal, R/o at Khandbara,
Tq.Navapur, Distt.Nandurbar.
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Mr.C.S.Kaptan, Senior Advocate with Mr.A.A.Naik Adv. with
Mr.Rohit Joshi, Adv. for the petitioner.
Mr.Ambarish Joshi, AGP for respondent nos.1 to 3.
Mr.A.S.Kilor, Advocate for respondent no.4.
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WP2202.16 3
CORAM: B.R.GAVAI AND
V.M.DESHPANDE, JJ.
DATE: 23rd AUGUST, 2016.
ORAL JUDGMENT (Per B.R.Gavai, J.)
1. Rule. Rule is made returnable forthwith by consent of
learned counsel for both the parties.
2. The facts, out of which both the petitions arise, are
interlinked and since the questions that arise for consideration in
both the petitions are also interlinked, we have heard and
deciding both these petitions together.
3. The respondent nos.1 to 3 had invited tenders for
awarding the work of transportation of food grains from the
godowns of the Food Corporation of India (FCI) to the godowns of
Government of Maharashtra and from the godowns of
Government of Maharashtra to various Fair Price Shops in the
Buldhana district. The Tender notice for same was issued on 11 th
of February, 2014. In pursuance to the said notice, the petitioner
has submitted its bid and also submitted Earnest Money Deposit
(EMD) of Rs.32.50 lakhs. However, it appears that for some or
other reasons the said tender could not be finalized and as such a
second tender notice was published. However, the second tender
notice also could not be finalized and as such third tender notice
was published on 5th of March, 2016. In pursuance to the said
tender notice, the petitioner submitted its bid on 17 th of March,
2016, however, the petitioner did not submit the EMD considering
that the petitioner's EMD in respect of the first tender notice was
available with respondents - authorities and the work under both
the previous tenders was same and the amount of EMD was also
same.
4. However, it appears that the petitioner was not
permitted to participate in the said bid and its bid was rejected on
the ground that the petitioner had not submitted the EMD. Being
aggrieved by the action of the respondent-authorities of not
permitting the petitioner to participate in the financial bid, the
petitioner filed Writ Petition No.2202 of 2016 in which the
Division Bench of this Court (Coram: B.P.Dharmadhikari and
P.N.Deshmukh, JJ.) vide order dated 7th of April, 2016 has issued
following directions :-
ig "The commercial bids are to be
opened today at 3.00 p.m.
In this situation, issue notice on
writ petition as also on civil application,
returnable on 13th of April, 2016.
Liberty to the respondents to
proceed further in the matter. It is open to
them to even look into the commercial bid of
present petitioner, if they find it convenient.
Th opening of commercial bid of
the petitioner in that event shall be subject to
further orders of this Court in the matter.
Though the tender process may go
on, no work order shall be issued till the next
date."
5. It appears that subsequently the respondent no.3 in
both the petitions directed the petitioner to renew its EMD.
Accordingly, the petitioner has renewed the EMD and the said
amount has been credited to the account of the Collector
Buldhana.
6.
It appears that though the EMD of the petitioner was
accepted, still the petitioner was not permitted to participate in
the further tender process though this Court had passed an order
dated 7th of April, 2016. The respondents opened the financial bid
on 7th of April, 2016. In the said financial bid, the respondent
no.4 was found to be the lowest bidder. The petitioner has,
therefore, filed another Writ Petition i.e. Writ Petition No.4663 of
2016 challenging the action of respondents - authorities in
opening the bid of respondent no.4 and the inaction on the part of
the respondent-authorities of not opening the financial bid of the
petitioner.
7. We have heard Shri C.S.Kaptan, the learned Senior
Counsel for the petitioner, Shri A.M.Joshi, learned Assistant
Government Pleader for the respondents - authorities and Shri
A.S.Kilor, learned counsel for respondent no.4.
8. Shri Kaptan, learned Senior Counsel, submits that the
respondent no.4 is not qualified to participate in the financial bid.
It is submitted that as per Clause (viii) of paragraph 12 of the
Government Resolution dated 26th of November, 2012 (hereinafter
referred to as 'said G.R.), a bidder must have minimum number of
trucks owned by him commensurate with the number of talukas in
a district and the equal number of trucks under his control to be
eligible for participating in the bid. It is the contention of the
petitioner that the perusal of affidavit filed by respondent no.4
would reveal that respondent no.4 has also given the number of
trucks which are being used by him in the Akola district also in
the present tender document. The learned Senior Counsel
therefore submits that the respondent no.4 is not qualified to
participate in the financial bid. The learned Senior Counsel relies
on the judgment of the Division Bench of this Court in Writ
Petition No.87 of 2004 (M/s D.K.Enterpjrises ..vs.. The State of
Maharashtra), decided on 5th of March, 2004, to which one of us
(B.R.Gavai, J.) is a Party. Shri Kaptan further submits that
respondent could not have opened the financial bid in view of
clause (vi) of paragraph 19 of the said G.R. since the petitioner
had objected and without petitioner's objection being considered,
the financial bid could not have been opened.
9. Shri Kilor, learned counsel appearing for respondent
no.4, on the contrary, submits that the contention of the petitioner
that the respondent no.4 is using the trucks which are being used
in Akola district for the work in the Buldhana district is without
substance. He submits that respondent no.4 is not allotted a
regular contract in the Akola district and at present he is only
working on an ad hoc basis in the said district.
10. For appreciating the rival contentions, it will be relevant
to refer to Clauses (i) (viii) and (ix) of paragraph no.12 of the
Government Resolution dated 26th of November, 2012, which are
as under :-
"(i) The tenderer should have self owned vehicles of
minimum 9 Mt. Tonne loading capacity equal
to the number of Talukas in the district and
same number of vehicles under his control,
available with him before submitting the tender.
(viii) It is necessary to enclose affidavit that the self-
owned vehicles and vehicles under control
submitted with the tender are not/will not be
utilized for other district and any other
contract/agreement of transportation during
the entire contractual period.
(ix) In case it is found that the vehicles self-owned
and under control submitted by the tenderer at
the time of contract or after entering into
contract are being utilized for transportation of
food grains in other district and also for any
other contract/agreement of transportation, in
that case, action of termination of contract will
be taken at government level."
11. It could thus be seen that the tender document requires
that the bidder must have the minimum number of trucks owned
by him commensurate with the number of Talukas in the district.
In addition, the same number of trucks must also be under his
control. It further provides that the trucks must be having
capacity of minimum 9 metric tonnes. Clause (viii) requires that
along with the tender document the bidder is required to give an
affidavit, undertaking therein that the trucks owned by him and
under his control are not/will not be utilized for other district and
for any other contract of transportation during the entire
contractual period. Clause (ix) provides for violation of Clause
(viii). It provides that if it is found that after entering into
contract the Contractor uses any of the vehicles, details of which
are given by him, for transportation of food grains in other district
and also for any other contract, in that case, the contract awarded
to such Contractor would be terminated.
12. The reliance placed by Shri C.S.Kaptan, the learned
Senior Counsel appearing for the petitioner on the case of
D.K.Enterprises (supra) (to which one of us, B.R.Gavai, J. is also a
Party) in our view is of no assistance in the case of petitioner. In
the said case, an argument was advanced by learned counsel for
the petitioner that the contractor should be permitted to use the
infrastructures available to operate in one district for being
eligible to submit his bid in any other district. It was argued that
the clause which restricts the trucks to be exclusively used in
particular district restricts the competition and tends towards
monopoly. The said contention was rejected by the Division
Bench of this Court. No doubt that the Division Bench has
observed that while awarding the contract to a Contractor, who is
already awarded contract in other district, should also specify
that, in the district for which bidder is bidding, he must have
sufficient infrastructures. It is a specific contention of the
respondent no.4 that he has not been awarded any regular
contract for supply of food grains in any other district. In that
view of the matter, we find that those observations would not be
applicable to the facts of the present case.
13. The perusal of the affidavit filed by respondent no.4
would reveal that in the affidavit he has given the details of 14
trucks which are owned by him. He has also specifically stated in
the affidavit that he will not use these vehicles in any other
district or outside the district for supply of food-grains. We find
that the affidavit is in conformity with Clause (viii) of paragraph
12 of the said G.R.
14. In any case, Clause (ix) of the said G.R. is very clear. In
case the authorities find that the contractor, who is awarded the
contract, uses any of the trucks which he has undertaken to use
for contract in Buldhana district, his contract would be liable to be
terminated in view of Clause (ix) of Para 12 of the said G.R.
Merely, on an apprehension of the petitioner that respondent no.4
may use any of the trucks, which he has undertaken to use in
Buldhana district, in other district, it cannot be held that
respondent no.4 is ineligible.
15. In that view of the matter, we find that the contention
of the petitioner that respondent no.4 is not eligible to allot the
contract is without substance and the same is therefore rejected.
16. However, we find that, insofar as the second grievance
of the petitioner is concerned, the petitioner is justified in
contending that having encashed its EMD the respondents have
erred in not permitting him to participate in the financial bid.
17. No doubt that if the respondents-authorities had
continued with a stand that, since the petitioner had not
submitted EMD in response to the fresh tender it would not
permissible for the petitioner to participate in the financial bid,
that would have been justified in not opening his financial bid.
However, in view of the orders passed by this Court in Writ
Petition No.2202 of 2016, it appears that the authorities have
encashed the demand draft which was submitted by the
petitioner. Having encashed that amount, it was not permissible
for the respondents - authorities to prevent the petitioner from
participating in the financial bid. We find that the action of
respondent-authorities in encashing the demand draft towards the
EMD on one hand and not permitting the petitioner to participate
in the financial bid on the other hand, is not in consonance with
the fair play, equity and good conscious. We find that such an
approach of the respondents-authorities would be totally
arbitrary. As already observed herein above, had the respondent -
authorities stuck up with their stand, the petitioner would not
have been eligible since it had not submitted EMD along with the
tender, the things would have been different. However, having
represented the petitioner that its bid would be considered in the
event it renews its demand draft and having permitted the
petitioner to renew the demand draft and having encashed the
same, it does not lie in the month of respondents - authorities
now to say that petitioner is not eligible to participate in the
tender process on the ground that he has not submitted the
EMD.
18. In that view of the matter, in the interest of justice, we
find that the respondents be directed to open the financial bid of
the petitioner and permit it to participate in the financial bid. It
may be observed that respondents - authorities have not stated in
their reply that the petitioner is disqualified on any other ground.
19. In the result, the petitions are partly allowed.
The contention of the petitioner that the respondent
no.4 is disqualified to participate in the tender process is rejected.
The respondents - authorities are directed to open the financial
bid of the petitioner. The same shall be done within a period of
one week from today and the contract be awarded to the eligible
bidder.
In the facts and circumstances, no orders as to costs.
Rule is made partly absolute in the aforesaid terms.
JUDGE JUDGE
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