Bombay High Court
Aanand Singh Sanwal vs Municipal Council, Ballarpur ... on 4 May, 2016
Bench: V.A. Naik
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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.
---------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------
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
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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
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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
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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
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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
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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
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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,
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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.
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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
