Bombay High Court
M/S J. P. Enterprises, Mumbai ... vs State Of Maharashtra Through ... on 14 September, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.1871/2016
...
M/s J.P. ENTERPRISES,
A partnership firm herein represented
by its Partner Mr. Rajan Kantilal Shah,
Aged about 51 years, Occupation:
Business, having office at 403,
Konark Sharm Building, 156, Tardeo
Road, Mumbai -34. .. PETITIONER
.. Versus ..
1. State of Maharashtra,
through Public Works Division,
Mantralaya, Mumbai.
2. Executive Engineer,
Public Works Division No.3,
Civil Lines, Nagpur.
3. Superintending Engineer,
Public Works Division No.3,
Civil Lines, Nagpur.
4. Abhi Engineering Pvt. Ltd. ,
through its Director
Shri Sanjay R. Vijaywargi,
having office at 405/405,
Gomati Apartment,
Law College Square,
West High Court Road,
Dharampeth, Nagpur. .. RESPONDENTS
Mr. G.B. Sawal, Advocate with Mr. Pravin Deshmukh, Advocate for
Petitioner.
Mrs. B.H. Dangre, Government Pleader for Respondent Nos. 1 to 3.
Mr. A.A. Naik, Advocate for Respondent No.4.
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CORAM : B.R. Gavai & V.M. Deshpande, JJ.
DATED : September 14, 2016.
ORAL JUDGMENT (per B.R. Gavai, J. )
1. Heard finally by consent of learned counsel appearing for
the parties.
2. The
petitioner has approached this Court being
aggrieved by the notice dated 11.03.2016 issued by respondent
no.3 thereby intimating the participating bidders that the bids of all
the participants would be reopened in the office of the
Superintending Engineer, P.W. Circle, Nagpur on 14.03.2016.
3. In response to the tender notice issued by respondent
nos. 1 to 3, four bidders including the petitioner and respondent
no.4 have participated. The bids were to be submitted into two
parts, the first part was with regard to the technical qualification
whereas the second part was with regard to the financial bid.
4. In the technical bid, respondent no.4 was not found to be
qualified inasmuch as he had not submitted the necessary
experience certificate. As such the price bid of three bidders
including that of the petitioner were opened. It is not in dispute
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that the present petitioner is the lowest bidder amongst them.
5. However, it appears that subsequently respondent no.4
made a representation to respondent no.3 contending therein that
the experience certificate was inadvertently not submitted. He
had also submitted that his bid was lesser by Rs.1.2 crores than the
lowest bidder. It appears that acting on the representation,
respondent no.3 decided to permit respondent no.4 to submit his
experience certificate and also permitted him to participate in the
bidding process. Being aggrieved thereby, the petitioner
approached this Court by way of present writ petition.
6. The Division of this Court vide its order dated 14.03.2016
(Smt. Vasanti A. Naik and V.M. Deshpande, JJ.) found that the
petitioner had made out a strong prima facie case and as such
granted interim relief thereby staying the impugned notice.
7. It appears that vide order dated 03.08.2016 (B.P.
Dharmadhikari and Ku. Indira K. Jain, JJ.) this Court had granted
time to the learned Government Pleader to take instructions as to
whether the State Government would like to proceed further with
the tender process or would be interested in publishing the fresh
tender.
8. In pursuance to the directions issued by this Court dated
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03.08.2016, the learned Government Pleader states that the State
has filed civil application being Civil Application No.1972/2016
seeking permission to issue fresh tender. It could thus be clearly
seen that the respondent-State has now decided to invite fresh
bids.
9. By how it is settled principle of law that the employer is
not bound to accept the lowest bid. It is always permissible for an
employer to go in for fresh bidding process if exigency of the
situation so warrants.
10. In the present case, it appears that in pursuance to the
suggestion given by the Division Bench of this Court vide order
dated 03.08.2016, the employer has decided to invite fresh bids.
The learned Government Pleader states that this has been done
since it is found that, in the fresh bidding process there would be a
better competition and there is also possibility of substantial
amount of public exchequer being saved.
11. The perusal of the petition would reveal that it is not the
case of the petitioner that respondent nos. 1 to 3 had decided to
open the bid of respondent no.4 with a mala fide intention or for
some extraneous reason.
12. In that view of the matter, we find that since the State
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itself has decided to invite fresh bids, nothing survives for the
adjudication in the present petition. As already discussed
hereinabove, it is also permissible for the State to go in for fresh
bids. Such a decision cannot be interfered with in the extra
ordinary jurisdiction unless it is noticed that something is done for
an extraneous consideration or with a mala fide intention to favour
someone. Since in the fresh bidding process the petitioner and the
respondent no.4 would be entitled to participate, it cannot be said
that the decision has been taken on some extraneous reason or
with a mala fide intention. In that view of the matter, we find that
in view of the subsequent development the petition needs to be
rejected. The writ petition is accordingly rejected. Rule is
discharged.
13. In view of the disposal of the petition, no orders are
necessary on the Civil Application No.1972/2016.
14. At this stage, the learned counsel for the petitioner prays
for continuation of the stay granted by this Court on 14.03.2016.
We find that on account of intervention by this Court, the work was
stalled for almost a period of six months. The work involved is
widening and strengthening of the Bela- Thana road, which is a
major district road. We find that if the work of the project is stalled
for a further period, it will result in causing inconvenience to the
public at large. In any event since the State itself has decided to
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invite fresh bids in which everybody including the petitioner and
respondent no.4 can participate, the prayer is, therefore, rejected.
(V.M. Deshpande, J. ) (B.R. Gavai, J.)
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