Bombay High Court
Reliance Life Sciences Pvt. Ltd. ... vs State Of Maharashtra 2 Ors on 2 August, 2017
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1749 OF 2017
1 Reliance Life Sciences Pvt. Ltd.
2 Mr. Rama Prasad,
Director of Petitioner No.1. .... Petitioners
vs
1 State of Maharashtra
2 Directorate of Health Services,
Government of Maharashtra
3 Joint Director of Health Services
(Procurement Cell), Mumbai .... Respondents
Dr. Milind Sathe, Senior Advocate with Ms. Jyoti Sinha, Mr. Parth
Gokhale and Mr. Akshat Agarwal i/by Khaitan and Co. for the
petitioners.
Mr. Abhay Patki, AGP for respondents/State.
CORAM: ANOOP V. MOHTA AND
SMT. BHARATI H. DANGRE, JJ.
DATE : August 2, 2017
ORAL JUDGMENT (Per Anoop V. Mohta, J.):
1 Rule. Rule is made returnable forthwith. Heard finally by
consent of parties.
2 The Petitioners have participated in the tender, for supply
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of various drugs including Human Anti-Hemophilic Factor VIII,
issued by the Respondents-State of Maharashtra. The Petitioners are
otherwise eligible being manufacturer of these drugs in Maharashtra.
Three other parties also participated in the tender.
3 The challenge is restricted to the following tender
condition no. 2.8 :
"2.8 Tenders are not allowed from manufacturer or
Distributor for the product (s) for which the Firm
found guilty of malpractice, misconduct, or
blacklisted/debarred either by Public Health
Department, Govt. of Maharashtra or by any local
authority and other State Government/Central
Government's organizations in the past three years for
item quoted. No guarantee is given for issue of order
of total quantity mentioned in the tender document.
The bidder has to supply quantity as may be ordered by
the Direct Demanding Officers during the currency of
the contract."
4 The Petitioners received the following communication
dated 4 May 2017 -
"Company is blacklisted for Anti-Hemophilic Factor VIII
by State Health Society, Bihar."
The Petitioners immediately replied on 5 May 2017 and forwarded
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the details along with copy of State of Bihar's order dated 11 October
2012, whereby the State of Bihar, by reasoned order has "de-
blacklisted" the Petitioners - but de-registered for next 5 years for the
products. We have noted that the Petitioner-firm was de-registered
as they unable to supply AHF within prescribed time and required
quantity and not for other reasons.
5 The Respondents, on 8 June 2017, without assigning any
reason, even without noting the explanation so given in response to
Petitioners' letter dated 5 May 2017, informed as under:
"With reference to your letter mentioned above,
it is stated that your request to consider your bid as
responsive in tender no. E-112 cannot be accepted,
since your firm has been deregistered for Anti-
Hemophilic Factor VIII by State Health Society, Bihar."
This resulted into denying the participation in the bid for tender
though otherwise the Petitioners are eligible as stated above.
6 The condition/clause so referred above, in our view, no
where take into its ambit and specifically those concepts of "mal-
practice", "mis-conduct" and/or even "blacklisting". The issue of
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blacklisting, as recorded above, is cleared by the subsequent
communication/reply dated 8 June 2017. The registration of
contractor in particular area and/or State is the requirement for
participation in the tender process. The de-registration, even if any, as
recorded, for the reasons so reproduced, in no way, can be considered as
"mal-practice" and/or "misconduct". It is important that for treating or
initiating any proceedings against any person revolving the concept of "mal-
practice" and/or "mis-conduct" required to be in consonance with the
procedure of settled law. This is not the situation where the Petitioners'
case, in any way, directly or indirectly falls within the ambit of "mis-
conduct" and/or "mal-practice". The de-registration cannot be treated as
"misconduct" or "mal-practice". There is no surviving case even of
"blacklisting".
7 Therefore, in view of the clear concepts so recorded above,
we are of the view that communication dated 8 June 2017 debarring the
Petitioners from participation in the bid/tender is unjust, unsustainable and
liable to be interfered with. The Petitioners are entitled to participate in the
tender process as they are otherwise eligible and as there is no objection of
any kind for Petitioners' participation, except communication dated 8 June
2017. The Petitioners have made out a case to invoke Article 226 of
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the Constitution of India. Hence the order:
ORDER
(a) Communication dated 8 June 2017 is quashed
and set aside.
(b) We direct the Respondents to consider the
Petitioners' bid/tender dated 29.12.2016 in question as
responsive and proceed in accordance with tender
process.
(c) Rule made absolute accordingly.
(d) No costs.
(BHARATI H. DANGRE, J.) (ANOOP V. MOHTA, J.)
