Bombay High Court
Gaurang Engineering Through Its ... vs The State Of Maharashtra And ... on 3 August, 2017
Bench: S.C. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2758/2017
1] Gaurang Engineering,
Through its Proprietor
Santosh s/o Udhavrao Kulkarni,
age 46 yrs., occu.business,
r/o Plot No.W-5, MIDC,
Chikalthana, Aurangabad.
2] Akash Engineering Works,
Through its Proprietor
Shaikh Asim Shaikh Rauf,
age 26 yrs., occu.business,
1-6-1522, Opp.Anvita Hotel,
Jalna Road, Beed.
3] The Maharashtra State Small Scale
Industries Development Corporation,
Aurangabad. Through its
Divisional Manager.
...Petitioners..
Versus
1] The State of Maharashtra,
Through its Secretary,
School Education Department,
Mantralaya, Mumbai-32.
` 2] The Director of Primary Education,
Maharashtra State,
17, Dr.Ambedkar Road,
Opp.Red Temple, Pune-1.
...Respondents...
.....
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Shri V.J. Dixit, Senior Advocate with Shri A.G. Talhar,
Advocate for petitioners.
Shri P.K. Dhakephalkar, Senior Advocate with Shri S.S.
Thombre, Advocate for respondent nos.1 & 2.
Shri Subodh P. Shah, Advocate for applicant in CA
4545/2017.
Shri P.S. Chavan, Advocate for applicant in CA 8648/2017.
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WRIT PETITION NO.8643/2017
Shree Ganesh Press N Coat Ind.Pvt.Ltd.,
Through its Director
Ravindra s/o Dattatraya Vaidya,
age 58 yrs., occu.business,
Regd.Off & Work Plot No.M-151/152,
MIDC Area, Waluj, Aurangabad.
...Petitioner..
Versus
1] The State of Maharashtra,
Through its Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2] The Director of Primary Education,
Maharashtra State,
17, Dr.Ambedkar Road,
Opp.Red Temple, Pune-1.
3] The State Level Purchase Committee
Constituted by the Director of Primary
Education, Maharashtra State, Pune,
at Pune.
4] The Maharashtra State Small Scale
Industries Development Corporation,
Aurangabad. Through its
Divisional Manager.
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5] Shalaka Infra-Tech (I) Pvt.Ltd.,
Through its Director
Shalaka House Plot No.22,
Gajanan Housing Society,
Next to LIC Housing Finance,
Ganeshkhind Road,
Shivaji Nagar, Pune 411016.
6] Sai Trading Company,
Through its Director,
Old Mondha Road,
Vitthal Mandir Chowk, Peth Beed
Tq. & Dist.Beed 431 122.
7] Krish Intratrade Pvt.Ltd.,
Through its Director,
Plot No.25, Flat No.5 Saisakha Apartment,
Shardashram Colony, Nirala Bazar Road,
Aurangabad (CB) 431001, Aurangabad.
...Respondents..
.....
Shri P.M. Shah, Senior Advocate with Shri A.G. Talhar,
Advocate for petitioner.
Shri P.K. Dhakephalkar, Senior Advocate with Shri S.S.
Thombre, Advocate for respondent nos.1 & 2.
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CORAM: S.C. DHARMADHIKARI &
MANGESH S. PATIL, JJ.
JUDGMENT RESERVED ON 17.7.2017
JUDGMENT PRONOUNCED ON 03.08.2017
JUDGMENT (Per S.C. Dharmadhikari, J.) :
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1] Heard learned counsel appearing for the parties.
Rule. Respondent nos.1 and 2 waive service. By consent,
Rule is made returnable forthwith.
2] Both these petitions were heard together.
During the arguments, a request was made that even the
second petition, which was argued by Shri P.M. Shah,
Senior Advocate, contains more or less same materials and
espouses the cause of the MSSIDC, a common judgment can
be delivered to dispose them of. That is how, this
judgment will dispose of both the petitions.
3] This Court had made several orders, to which we
shall make reference a little later.
4] By these petitions under Article 226 of the
Constitution of India, the petitioners are seeking a writ
of mandamus or any other appropriate writ, order or
direction directing the respondent no.2 to allow not only
the petitioner nos.1 & 2 but the added petitioner no.3,
to participate in the further tender process for supply
of Airtight Container for storage of food grains under
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Mid Day Meal Scheme in rural area of Maharashtra State.
The added petitioner no.3 is the Maharashtra State Small
Scale Industries Development Corporation, Aurangabad,
through its Divisional Manager (for short, the MSSIDC).
It was originally impleaded as respondent no.3.
5] Alternatively, the relief claimed is that 30% of
the total work be awarded to the MSSIDC. The relief
claimed is that there was a tender process initiated by
the Director of Primary Education, Maharashtra State, for
supply of Airtight Container for storage of food grains
under Mid Day Meal Scheme in rural areas of Maharashtra
State dated 9.1.2017.
6] After seeking the above reliefs, it is prayed
that the order dated 20.2.2017 passed by the respondent
no.2 may be quashed and set aside. The respondent no.2
be directed to open the technical bid of the MSSIDC. It
is stated that the petitioner no.1 is a proprietary
concern and equally the petitioner no.2. The petitioner
no.3, as already stated, is the Maharashtra State Small
Scale Industries Development Corporation, Aurangabad
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Division, through its Divisional Manager. It is claimed
that the petitioners have set up the units in the year
2006. They are in the business of manufacturing S.S.,
M.S. furniture and all types of fabrication works. The
petitioners are also registered as a small scale
industrial unit. They are also registered under the
Ministry of Micro Small and Medium Enterprise. Annexure
'A' is a copy of the certificate of registration as SSI
unit.
7] The MSSIDC was set up in the State of
Maharashtra for aiding, assisting, financing, protecting
and promoting the interest of small scale industries.
This Corporation plays a vital role in revival,
development and growth of traditional handicrafts of
Maharashtra by responding to the diversified needs of the
rural artisans and marketing their products. The
petitioners also enrolled themselves as member units.
They were, therefore, registered as such by the MSSIDC on
22.9.2016. It is common ground that there are several
materials, articles and goods required by the Government
offices and departments. The Government of Maharashtra
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decided to reserve certain items for the MSSIDC. A
Government resolution came to be issued to that effect on
1.12.2016, copy of which is at Annexure 'C'.
8] The petitioners submit that the respondent no.2
floated a tender on 9.1.2017 for supply of Airtight
Containers for storage of food grains under the Mid Day
Meal Scheme in the rural area of the State of
Maharashtra. The total estimated cost of the tender is
shown at Rs.91.36 crores and the time limit for supply is
90 days. The earnest money deposit (for short, the EMD)
for the said tender is fixed at Rs.182.72 crores. As per
the said tender, the pre-bid meeting is to be held on
19.1.2017, the period for submission of e-tender is from
2.2.2017 to 6.2.2017. The blank tender form was not
supplied free of charge, but a fee was determined for the
same at Rs.50,000/-. There was a date stipulated for
submission of sample, sample testing fees and unit
verification fees of Rs.50,000/- each. Opening of the
technical bid is on 7.2.2017 and on-line opening of the
commercial bid is stated to be on 15.2.2017. Lateron,
the date of opening for commercial bid was extended upto
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1.3.2017 by a corrigendum of the respondent no.2. A copy
of the tender document and the corrigendum issued by the
respondent no.2 are annexed and marked as Annexure 'D'.
9] It is the claim of the petitioner nos.1 and 2
that alongwith other 40 small entrepreneurs, they
approached the MSSIDC. They expressed their willingness
to perform the work under the tender. A meeting of the
petitioners and other entrepreneurs was held with the
respondent no.3 on 30.1.2017. It was decided that the
MSSIDC would apply for the work order by placing a bid on
behalf of the petitioner nos.1 & 2 and other 41 small
entrepreneurs. That is how the MSSIDC applied for the
tender and submitted the form with the respondent no.2 -
authority. It is claimed that the petitioners attended
as per the corrigendum in the office and forwarded their
sample and demand draft of Rs.50,000/-. This is done
within the prescribed period. However, the respondent
no.2 refused to accept the same and also refused to give
an acknowledgement to that effect. However, the samples
have been retained with the respondent no.2. The
petitioners requested to accept the sample and give an
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acknowledgement, but the respondent no.2 refused to do
so. Thereupon, a panchanama was drawn up and it was
forwarded by the MSSIDC to the higher officials of the
respondent no.2.
10] Thereafter, the petitioners also approached the
respondent no.2 and requested him to allow the MSSIDC to
participate in the commercial / price bid scheduled on
1.3.2017. As per the information given by the MSSIDC, it
is claimed that the price bid / technical bid of the
MSSIDC is pending. The results of the technical bid
disclosed that as far as the petitioners are concerned,
it is canceled or rejected.
11] The petitioners also made an application dated
26.2.2017, copy of which is at Annexure 'G', highlighting
the above facts and claiming that the MSSIDC could not
have been excluded from the process and in a wrongful
manner; all the more, when the Government has given the
MSSIDC a prominent place. It is common ground that
certain percentage of the materials have to be procured
from the MSSIDC. It is in these circumstances and making
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allegations of illegalities and arbitrariness, the
pleadings in paragraph nos.12 to 15 would read.
12] It is common ground that this petition was
placed before a Division Bench of this Court on 1.3.2017
because of the urgency. After haring both the sides,
this Court passed the following order :-
"1. Learned Counsel for petitioner submits that
petitioner has served Respondent No.2 by private
notice. Learned Counsel for petitioner submits
that technical bid of the petitioner has not been
rejected and the status of the technical bid is
being shown as pending. Today is the date fixed
for opening the commercial bid. It is submitted
that Respondent No.3 has deposited E.M.T. of Rs.
1,83,00,000/. According to the learned Counsel
for petitioner, as per policy, 30% of the work is
to be allotted to the small scale industry
through Respondent No.3. Learned Counsel for
petitioner submits that even samples were given
to Respondent No.2 in presence of Respondent
No.3. However, acknowledgement was not given.
2. Learned Counsel for Respondent No.3 submits
that the samples were given by petitioner in
presence of officers of Respondent No.3 and
panchanama to that effect has also been made.
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3. Learned A.G.P. waives notice for Respondent
Nos.1 and 2. Mr. Borulkar, learned Counsel wives
notice for Respondent No.3. Place the matter on
07th March, 2017. In the meantime, if there is no
other impediment, the commercial bid of
Respondent No.3 may be opened but same will be
without prejudice to the rights of Respondent
No.2 and subject to further orders to be passed
by this Court. The petitioners and/or Respondent
No.3 would not be entitled to claim any equity
only because their commercial bids are directed
to be opened.
4. Authenticated copy be given. The said order be
communicated to Respondent No.2 by learned
A.G.P."
13] Thereafter, the petition was placed on several
occasions and on 30.3.2017, leave was granted to
transpose the respondent no.3 - MSSIDC as the petitioner
no.3.
14] Thereafter, the scenario changed and essentially
cause of the petitioner nos.1 and 2 and the other SSI
units, as claimed, was espoused solely by the MSSIDC. On
6.4.2017, therefore, this Court passed the following
order:-
"1. This Court, by an order dated 01.03.2017,
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while directing issuance of notice to the
respondents, directed them that if there is no
other impediment, commercial bid of Respondent
No.3 (transposed as petitioner No.3) may be
opened but the same will be without prejudice to
the rights of respondent no.2 and subject to
further orders to be passed by this Court.
Respondents have expressed difficulties for
complying with the interim directions issued by
this Court on 01.03.2017. It is the contentions
of the respondents that the order is passed
without their being any return by respondent
Nos. 1 and 2, placed on record. The respondents
reiterated that sample testing fees of
Rs.50,000/- and unit verification fees of
Rs.50,000/- in the form of Demand Draft, in
favour of Accounts Officer, Directorate of
Primary Education, Maharashtra State, Pune was
payable upto 15.02.2017, 11.00 a.m., the same
was not tendered within specified time limit,
however was submitted late by 20 minutes. The
petitioner has invited our attention to the
demand drafts dated 15.02.2017 and contended
that in fact, an attempt was made to submit the
same before the prescribed time but the same was
not accepted.
2. Even otherwise, in order to have open, fair
competition, we direct the respondents to
consider the Bid of respondent No.3, considering
the directions / communication issued by the
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Directorate of Education (Primary) dated
05.04.2017 which is placed on record. The same
is marked 'X' for identification. It is stated
in the said communication that respondents will
accept the demand drafts towards sample testing
fees and Unit Verification fees and would
proceed to test the samples and would conduct
unit verification. The petitioner undertakes to
tender demand drafts by 10.04.2017, which shall
be accepted by the respondents. The respondents
shall proceed to conduct sample testing and unit
verification as prescribed under Clause 17 of
the notice inviting tender. It is recorded in
Clause 17 that -
"Verification of manufacturing Unit: The
Director of Primary Education Maharashtra
State Pune will verify the manufacturing
units of manufacturer whose technical bid
satisfies the qualification criteria. This
shall be a part of technical qualification
of the bidder. The bidder shall submit
demand draft of Rs.50,000/- alongwith
details of manufacturing unit, availability
of carious machines as specified in the
tender documents, inhouse testing laboratory
etc. with details of contact in prescribed
format given up to 04.02.2017 at 4.00 p.m.
at DEPMS, in favour of Accounts Officer,
Directorate of Primary Education,
Maharashtra State, Pune payable at Pune
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towards the expenses for inspection of
manufacturing unit. Failing this will cause
a rejection of bid as non responsive".
3. The learned counsel appearing for the
respondents / State informs that the Committee
of seven members is constituted for examining
the samples and for unit verification. It is
expected of the Committee to conduct unit
verification/testing within two weeks.
4. Learned counsel for the respondents shall
place on record the result of unit
verification / testing relating to all the
bidders including petitioner No.3 on the
adjourned date.
5. The counsel appearing for the petitioner
placed reliance on the Government resolution
dated 01.12.2014 Item 215 mentioned in the
Schedule 17 annexed to the Resolution is
reserved for purchase from the Small Scale
Industries and it would be obligatory on the
part of the respondents to make purchase from
Small Scale Industry, according to petitioner.
6. The counsel appearing for the respondents
states that Item which is scheduled to be
purchased i.e. Air Tight Container is different
than the Item mentioned at Serial No.215
(Schedule 17). The contentions raised by the
petitioner shall be considered at an appropriate
stage if occasion arises. It would also be
necessary for the respondents to clarify
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technical specification and place on record the
details of product and design thereof to
demonstrate differentiation between item
proposed to be purchased and item specified in
Schedule 17 at Sr. No.215, together with opinion
of the expert.
7. Stand over to 20.04.2017."
15] The writ petition was amended, by which
paragraph no.15-A came to be introduced and inserted.
The argument was that the respondent no.2 from time to
time changed various dates regarding the said tender
thereby issuing corrigendum. It was urged that as per
the original tender, the date for submission of sample,
sample testing fees and unit verification fees was fixed
as 4.2.2017 at 4-00 p.m. Then, by an undated
corrigendum, the respondent no.2 postponed the date for
submission of the sample, sample testing fees and unit
verification fees upto 17.2.2017 at 11-00 a.m. Then,
again, this date was pre-poned by an undated corrigendum
to 15.2.2017 at 11-00 a.m. These chronology of events,
according to the petitioners, demonstrate the mala-fides
on the part of the respondent no.2. It is alleged that
they are upholding the interest of the heavy and big
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industries. There is a lobby, which prevailed upon the
Department, to eliminate the units represented by the
MSSIDC. In that process, it is alleged that the policies
and rules of the Government of Maharashtra have been
violated. It is then alleged that the respondent no.2,
while issuing the tender in respect of the said Airtight
Container, had not provided / supplied the technical
specifications regarding the manufacturing of the said
container. The petitioners, through the MSSIDC, made an
application to the respondent no.2 on 8.2.2017 and it was
submitted that certain details be provided.
16] The request was made so as to enable the
petitioners to manufacture the sample as per the
specifications. This e-mail dated 8.2.2017 of the MSSIDC
was not responded to and hence the Divisional Manager of
the MSSIDC addressed another e-mail dated 15.2.2017. It
was stated that though the representative of the
respondent no.2 was present and the samples were
accepted, no acknowledgement has been given. This was
done purposefully to eliminate the MSSIDC from the
process.
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17] There are other allegations made on this point
and non-acceptance of the technical bid of the
petitioners. It is claimed that the bid was received in
time, the samples were also forwarded and the demand
draft was furnished after slight delay, which was not
fatal. Secondly, the MSSIDC was representing the SSI
units, which are manufacturing the tin containers. A
harsh condition was imposed for procurement of machinery,
which was expensive and beyond the reach of the small
scale manufacturers. It is in these circumstances, the
order of the respondent no.2 dated 20.2.2017 has been
challenged.
18] The precise argument on this point is based on
paragraph nos.15-F and 15-G, which read as under:-
"15-F] That, the petitioners say and submit
that, the impugned order passed by the
respondent no.2 is not legal not proper and bad
in law as such the respondent no.2 had shown
that the impugned order was passed on
20.02.2017, however, it is part of record that
the same was not served on the respondent no.3
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up to 06.03.2017. That, during the period
15.02.2017 to 06.03.2017 the officers of the
respondent no.3 time to time visited the office
of the respondent no.2 and also send various
letter communications, however the respondent
no.2 had neither replied the same nor served the
impugned order to the respondent no.3. That,
this Hon'ble Court on 01.03.2017 was pleased to
pass the interim order and the same was served
to the respondent no.2 on the same day i.e. on
01.03.2017 and thereafter i.e. on 06.03.2017 the
impugned order dated 20.02.2017 was served on
the respondent no.3. All these sequence of
event creates doubt about the impugned order as
such if the said order was passed on 20.02.2017
then why the same was not served on the
respondent no.3 immediately. Therefore, on this
count alone the impugned order passed by the
respondent no.2 is requires to be quashed and
set aside.
15-G] That, the petitioners state that, the
respondent no.3 had participated on behalf of
the 41 small scale industrial units as such the
respondent no.3 corporation was formed the
upliftment of the small scale industrial units
in the State of Maharashtra. The action of the
respondent no.2 in treating the respondent no.3
so casually is not in accordance with the
government policy and the revised rules framed
by the government. That, if the said work is
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allotted to the respondent no.3 then it will
give the employment to various small scale
industrial units and the labours working with
them, however, by not allowing the respondent
no.3 to participate in the tender the respondent
no.2 had virtually acted against the rules and
regulations framed by the State of Maharashtra,
therefore, the impugned order is thus bad in law
and liable to be quashed and set aside."
19] The affidavit in reply of the respondent nos.1
and 2, filed initially on 18.3.2017, deals with the
unamended petition. The admitted facts are that such a
tender was floated, that there was a two envelope
process. Firstly, the technical bid, and subsequently,
the price bid was to be opened. That, the goods to be
supplied were Airtight Containers for storage of food
grains. However, it is denied that the petitions involve
a disputed question of fact. It is then claimed that the
petitioners have not even filled in a tender. The tender
was submitted by the original respondent no.3, now the
petitioner no.3 - the MSSIDC. It has accepted the
decision of the State. This position has undergone a
slight change and now it is admitted that even the MSSIDC
is in the fray and has challenged the order of the
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respondent no.2. It is claimed in this affidavit, in
paragraph nos.9 and 10, that there were pre-bid meetings
and one of the pre-bid meetings was held on 23.1.2017 in
the office of the respondent no.2. There were bidders
present, who raised certain queries, and the same were
satisfactorily replied with. Neither the petitioner
nos.1 and 2 nor any representative nor officials of the
MSSIDC were present in the pre-bid meeting. Total 16
prospective bidders were present in the pre-bid meeting.
20] The petitioners were aware that the date for
submission of sample, sample testing fees and unit
verification fees, is 4.2.2017 and outer limit is 4-00
p.m. However, since the pre-bid queries were raised,
they were replied and the bidders required some time to
prepare themselves, that a corrigendum was published on
the website on 30.1.2017. The date was extended upto
15.2.2017 at 11-00 a.m. This corrigendum is updated by
correcting a mistake, which is purely typographical. In
that regard, reliance is placed on page no.232 of the
paper book.
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21] It is alleged that the MSSIDC ought to have
submitted the sample, sample testing fees and unit
verification fees in the form of demand draft drawn in
favour of Accounts Officer, Directorate of Primary
Education, Pune. This condition was not complied with by
the petitioners. This is clear from letter of the MSSIDC
dated 16.2.2017. It was specifically stated that the
demand draft, towards the inspection charges of the
samples, was tried to be submitted in the office of the
respondent no.2 by 11-20 a.m., but that was not accepted.
It is pertinent to note that copy of this letter was
received on 16.2.2017, which is much after the stipulated
date and time. Hence, it is alleged that the petitioners
have not approached this Court with clean hands. As an
afterthought, the letter dated 16.2.2017 was addressed.
22] Thereafter, there is a reference to the e-mail,
in which there is an assertion that the samples have been
submitted. There was assertion that the demand draft and
the fees have been forwarded and received. Therefore,
the panchanama drawn is of no assistance and at the
best, it is a one-sided version.
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23] It is in these circumstances that it was alleged
that four bidders could meet the dead-line and
participate in the process. They did not face any
difficulty in forwarding the samples and fees by demand
draft. It is alleged that because the MSSIDC did not
submit the demand draft in time, its technical bid was
not opened and was shown as rejected. Thus, all the
statements to the contrary are incorrect. It is claimed
that nine bidders have purchased the tender form. Out of
nine, five have deposited their EMD including the MSSIDC,
but the further fees was not deposited by the MSSIDC in
time, which resulted in rejection of their technical bid.
24] In paragraph no.16 of the affidavit, reference
is made to several corrigenda and how their issuance was
necessary is justified.
25] Thereafter, this affidavit deals with the
assertion that certain items are reserved for the
Government undertakings. It is claimed that the said
resolution is mis-read and mis-interpreted. It is
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claimed that items, which are to be procured from the
MSSIDC alone do not include the Airtight Container for
storage of food grains. The list appended at Schedule 20
to concerned Government resolution, therefore, cannot be
relied upon. That does not confer any right in the
MSSIDC nor can it derive any benefit in terms thereof as
far as the subject tender is concerned. There is no
reservation in the sense that the subject item does not
fall in reserved items reserved for purchase from small
scale industries. The Airtight Container is not included
in the list.
26] With all these assertions, it is stated that
even technical acceptance of the MSSIDC raises a question
mark. The technical bid has to include a report from an
expert. The samples are to be of the quality and as per
the norms specified in the tender notice. Once the
samples with the requisite testing fees and unit
verification fees were not submitted, then the first
requirement of clearance of the technical bid is not
satisfied. Consequently, there was no obligation to open
the financial bid.
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27] When this affidavit was filed, the petitioners
naturally sought the above relief of amendment etc.
28] This petition was then supposed to come before
our Division Bench on 30.6.2017. After hearing both the
sides, we passed the following order :-
"1] After this matter was briefly heard and Mr.
Talhar tendered a report, copy of which is now
going to be provided to all parties, we take
that on record. Mr. Talhar says that the earlier
orders of this Court are complied with.
2] We would be happy if the Managing Director of
Maharashtra Small Scale Industries Corporation
which is now the petitioner no.3 and prosecuting
the petition and challenging the tender process
is invited to a meeting by the tendering
authority viz. the Director of Primary
Education, Government of Maharashtra and at this
high level meeting a informed and fair decision
is taken, which will be in the larger interest
of the State. We are disturbed by the fact that
the Maharashtra State Small Scale Development
Corporation has now joined the fray as a
petitioner. It is challenging the action of the
State. Thus it is one arm or organ of the State
or department of the State against another. It
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is not a happy situation at all. This must be
resolved by these high level officials so as to
protect not only commercial interest of the
industries sponsored by the M.S.S.R.D.C. but the
image and reputation of the State. S.O. to
06/07/2017."
29] The matter was adjourned to 6.7.2017, on which
date, an additional affidavit was tendered in the Court.
It was reported that an amicable solution could not be
found, though as per the suggestion of this Court, a
joint meeting was convened and attended by all concerned.
That is how the matter stood over to 17.7.2017.
30] Before that, we took on record an additional
affidavit of the petitioners. Pertinently, the
additional affidavit has been filed by the MSSIDC and it
proceeds to allege that the Department of Primary
Education and particularly its Director acted
arbitrarily. There is a gross discrimination in the
sense, though qualified, the MSSIDC is excluded from the
tender process. This was with an intention to procure
the tender items from heavy and big industries.
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31] In this additional affidavit in paragraph no.2,
a technical evaluation sheet, as placed before this
Court, is challenged. Paragraph no.2 at page nos.262,
263 and 264 purports to give a point-wise clarification.
It was once again reiterated that if the MSSIDC is set up
for promoting and developing small scale industries, then
to insist that only a manufacturer can be in the fray, is
incorrect and misleading. The respondent no.2 and all
officers working in the Directorate of Primary Education
were aware that the MSSIDC by itself is not a
manufacturer, but a facilitator. The small scale
industries are not capable to bid individually. That is
how to assist all of them, the MSSSIDC has stepped in.
It caters to number of industries. In its duty and
function to promote small scale industries, the MSSIDC
has taken keen interest in the present endeavour. It has
never claimed that it was in any manner independently
seeking the contract. Once it represented all the member
industries, then there is no occasion to exclude it. It
is alleged that Airtight Container is equivalent to "/kkU;kph
dksBh". It is, therefore, unfortunate, according to the
petitioners, that a distinction is made, which is
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artificial. It is only because the cartel of industries
and particularly the manufacturing industries, has to
succeed, that the impugned action has been taken. The
petitioners rely upon the clarification by the Divisional
Manager of the MSSIDC in writing dated 15.6.2017. After
this affidavit was filed on 3.7.2017, there was another
affidavit filed so as to record the events in the meeting
convened pursuant to this Court's order dated 30.6.2017.
There are allegations made in this affidavit by the
Divisional Manager. It was brought to the notice,
according to him, that the MSSIDC is a facilitator. It
has also entered into agreement with the Marathwada Auto
Cluster and is backed by 41 small scale industries.
Therefore, it would be able to supply the goods in time
and as per the standard quota. If the subject item was
reserved for the jail authority (Karagraha), then, the
terms and conditions incorporated in the tender and
particularly insisting on turn over and machineries, is
an eye-wash and to protect other bidders. That is how,
the Divisional Manager claims that he sought answers to
his repeated queries, but the officers in the Directorate
were speechless. This affidavit was filed on 6.7.2017.
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32] There is an affidavit in reply of respondent
nos.1 and 2 to all the earlier allegations and the
amended memo of the writ petition. Further, the
respondent nos.1 and 2 purported to meet the statements
in the additional affidavits of the petitioners. In this
affidavit, the specific factual assertion ought to be
reproduced in the words of the deponent himself. We,
therefore, reproduce paragraph nos.3,4,5 and 6 of this
affidavit as under:-
"3. I say and submit that detailed reply was
filed by the present Respondent on 18.03.2017. I
reiterate the submission and averments made in
the said affidavit-in-reply. I say and submit
that the Petitioner has raised a ground in
respect of 30% of total supply to be reserved for
Government undertaking and has relied on
Government Resolution dated 01.12.2016. I say
and submit that as mentioned in the earlier
affidavit, the said stand of the Petitioner No.3
is incorrect. It is clear that from clause No.
5.17 of G.R. Which deals with the supply from
Government Undertaking as per Schedule 20 the
list of items which is to be purchased from the
Petitioner No.3 are mentioned. Those items are
polythene bags, RCC pipes, Air Coolers etc. I
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say and submit that the supply of Airtight
Containers for storage of food grains is not
mentioned in the list at Schedule 20 therefore,
there is no question of supply of reserved 30% to
the Petitioner No.3.
4. I say and submit that Airtight Containers for
food grains (Kothi) is not reserved for purchase
from Small Scale Industries. It is very clear in
schedule 17 of GR dated 01.12.2016; the list of
items reserved for purchase from Small Scale
Industries is given. The Airtight Containers for
storage of food grains (kothi) is not mentioned
in the said list at all. I say and submit that
the Petitioner No.3 who was earlier Respondent
No.3 in the aforesaid matter had filed a reply
thereby, contending that the kothi/Airtight
Containers for storage of food grains would find
place at Serial No.100 and 215 in the chronology
of the Appended Rules. I say and submit that I
deny the said statement and from bare perusal of
the Annexure-17 to the said Rules make it
abundantly clear that the Airtight Containers for
storage of food grains is not included in the
said Annexure-17. The said Kothi would find its
place in Annexure-14 where the purchasers are to
be made from the jail. The Annexures appended to
the said Rules make it abundantly clear that the
Airtight Containers fro storage of food grains
are not included to be purchased from MSSIDC. I
say and submit that the Annexure-17 Serial Nos.
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100 to 215 do not mention the Airtight Containers
for storage of food grains.
5. I say and submit that even the Director of
Industries has also issued a letter based on old
GR that the Airtight Containers for storage of
food grains (Kothi) is nor reserved for Small
Scale Industries. Copy of the letter dated
11.11.2016 is annexed herewith and marked as
Exhibit"A-1".
6. I say and submit that pursuant to the
orders passed by this Hon'ble Court, the expert
committee from college of Engineering Pune has
examined the issue and has submitted a detailed
report on 14.04.2017 thereby clearly
distinguishing between the Tin Container and the
specialized Airtight Container made from
Galvanized Steel Sheet for storage of food
grains. The expert committee clearly recommended
that due to high cost of metal it is unviable to
use Tin metal. It was also recommended that to
use Airtight Containers made from Galvanized
Steel-Sheet having zinc coating for storage of
food grains. Copy of report dated 14.04.2017 is
annexed herewith and marked as Exhibit "A-2".
33] These paragraphs of the additional affidavit in
reply, reproduced above, would indicate as to how it is
asserted by the authorities that the MSSIDC was not
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qualified or eligible for award of the contract. Its
tender was not compliant. The various requirements,
mentioned in the technical evaluation sheet, were not
complied with by the MSSIDC. The tenders have been
evaluated and assessed by experts and they have no
personal grudge or animus against the petitioners,
including the MSSIDC. For illustration, copy of valid
ISO 14001 certificate was not submitted by the MSSIDC.
This certificate is necessary for the purpose of
Environmental Management System. It assures commitment
to managing environmental impacts. It is a legal
requirement, which provides a frame-work for identifying,
monitoring and complying with various environmental
stipulations, which apply to processes of the product
manufactured. Then, OHSAS-18001 is an Occupational
Health and Safety Management Systems Specification. That
is a must, for, it promotes safe and healthy working
environment. That helps the organizations to identify
and control health and safety risks, reduce the potential
for accidents, aid legal compliance and improve overall
performance. These certificates were not submitted by
the MSSIDC.
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34] Further, there is a requirement of a BIS
certificate. The BIS certificate for IS 277:2003 and
Test Certificate for GI sheet have not been submitted by
the MSSIDC. Copy of a Chartered Accountant certificate
for positive network and liquid assets for 5% is not
filed. This non-compliance must be due to non-
finalization of accounts and balance-sheet for the last
three years as well as the complete audited and CA
certified balance-sheet and statement of accounts for
financial years 2014-15 and 2016-17 are not filed by the
MSSIDC. Another vital condition, which is not complied
with, is that the bidder should have own minimum machines
installed in working conditions. The submitted list does
not contain all the required machineries and the same is
not certified by a Chartered Engineer, as insisted in the
tender. Further, in unit verification, it was found that
some of the required machines and dies are not available.
Some of the measuring instruments are not available in
the house lab as per the requirement of the tender
document. Thus, based on the criteria involved,
evaluation of all bidders was carried out and
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transparently the petitioners did not qualify. It is
stated that all endeavours were made to settle the
dispute amicably, but the MSSIDC insisted that a tender
item was reserved for small scale industries. Apart
therefrom, it is unfair to allege anything against the
Directorate, for, it allowed the MSSIDC to participate
in the tender bid process, though it is not a
manufacturer or a unit by itself, but a mere facilitator.
It is in these circumstances and reiterating all the
earlier statements, it is prayed that the writ petitions
be dismissed.
35] The final affidavit was filed on 14.7.2017.
36] It is on the above materials that we have heard
the learned counsel appearing for the parties.
37] Shri V.J. Dixit, learned Senior Advocate
appearing for the petitioners in Writ Petition
No.2758/2017, would contend that we must peruse the
tender conditions carefully. He submitted that at page
no.181 is the tender document. However, that document
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and the conditions therein overlook the fact that the
Government of Maharashtra has on 1.12.2016, through the
Department of Industries, Energy and Labour, issued a
Government resolution on the subject of purchases by the
Departments. In fact, this Government resolution is a
revised procedural norm / Rule Book. Shri Dixit would
rely upon Clauses 3, 8 and 15 at page nos.41, 42, 43 and
44 of the paper book to submit that certain items were
reserved for small scale industries and when the
procurement, admittedly in this case, is by a Government
Department namely Directorate of Primary Education. Shri
Dixit would then invite our attention to page no.136 of
the paper book, which according to Shri Dixit, is a part
and parcel of the same document. Shri Dixit relies upon
Clauses 5.14 and 5.17 to urge that these Clauses enlist
the items set out in Schedules 17 and 20. Shri Dixit
would submit that there are in all 241 items, which are
reserved in terms of Schedule 17 for registered Micro and
Small Scale Industries. Then, Clause 5.17 would indicate
that 30% of the items have to be procured from the
Government of Maharashtra enterprises / undertakings
inasmuch as the items manufactured by them have to be
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procured necessarily to the extent of 30% at L-1 rate.
The list of such Maharashtra Government enterprises and
undertakings together with items manufactured by them,
are set out in Schedule 20. Shri Dixit would emphasize
that Airtight Container is at 215 at page no.173 of the
paper book. Shri Dixit would submit that the item
described is misleading. An Airtight Container is
equivalent to ""/kkU;kph dksBh". In the tender, though a
"/kkU;kph dksBh" is deliberately described as an Airtight
Container, it is so done to keep out the SSI industries.
Inviting our attention to page no.236 of the paper book,
Shri Dixit would submit that the communication dated
20.2.2017 describes the item as "/kkU; lkBfo.;klkBh dksBhph [kjsnh".
If this is the item to be procured, then the same has
always been procured and supplied by the MSSIDC
registered units. In any event, some of them are
manufacturing Airtight Containers.
38] Shri Dixit would then submit that a perusal of
the MSSIDC's tender would indicate that the MSSIDC has
stepped in because the EMD could not have been arranged
by small scale industries. Shri Dixit submits that at
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page no.71 of the paper book, is a stipulation pertaining
to the committee. It is stated in Clause 2.9.1 of the
Government resolution dated 1.12.2016 that for purchasing
the items in terms of this Government resolution, a High
Level Committee is constituted and established. It is
the Additional Chief Secretary / Principal Secretary /
Secretary of the Procuring Department, the Additional
Chief Secretary / Principal Secretary / Secretary of the
Finance and the Commissioner of Industries, who are
members of this committee. This committee has a power to
procure any time on emergent basis of worth more than
rupees one crore. It has also powers to invite limited
tenders, restricted tenders and swiss challenge. This
committee would grant the approvals for these processes.
It is only after this committee grants the approval, that
the Department concerned can obtain administrative and
financial approvals for operating the process of
procurement. Shri Dixit, therefore, submits that it is
the committee, which should have taken the decision for
purchasing of the items for the Directorate of Primary
Education. It is the Department of Primary Education and
its personnel, who should have been there even in the
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evaluation process and in that regard, our attention is
invited to page no.72 of the paper book. It is claimed
that Clause [c] of the limited tender at page no.94 and
Clause 2.9.1 at page no.71, provide for the appropriate
committees. Then, Shri Dixit invites our attention to
page nos.184 and 185 of the paper book to submit that the
tender document, vide Clause 17, has provided for
verification of the manufacturing units. That stage is
to be reached after the technical bid is opened. Prior
thereto, on-line submission limited bid is contemplated
and earlier to the same, there is submission of samples
vide Clause 14. Shri Dixit would submit that if the
report of evaluation of the bids is called for, it would
be evident that there is no report about verification of
manufacturing units. Shri Dixit invites our attention to
Clause 19 and page nos.187 and 188 of the paper book, to
urge that only evaluation sheet has been submitted.
Thus, there is a compliance of the terms and conditions
by the MSSIDC, whereas others have not complied with the
same. They have been seller, though their bids are
falling short of the eligibility criteria and norms. It
is in these circumstances that Shri Dixit would submit
WP 2758/17 & another
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that in powers of judicial review, this Court can set
aside the decision of the respondent no.2. Judicial
review enables a scrutiny and verification of the
decision making process, but may not allow the quashing
of the decision itself. Shri Dixit raises a serious
complaint that all those, who have been considered, are
mere traders and no manufacturer has participated, as
falsely asserted. In these circumstances, Shri Dixit
relies upon the judgment of the Hon'ble Supreme Court in
the case of Reliance Energy Limited and another v.
Maharashtra State Road Development Corporation Ltd. &
others (2007) 8 SCC 1.
39] On the other hand, Shri Dhakephalkar, learned
Senior Advocate appearing for the respondent nos.1 and 2,
submits that there is no merit in these petitions and
they must be dismissed. Shri Dhakephalkar heavily relied
upon the statements in the affidavit in reply and
additional reply. Shri Dhakephalkar would submit that a
complete misleading picture has been presented by the
petitioners. There is no violation of the Government
resolution dated 1.12.2016. The item to be procured is
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not reserved for the SSI. There has been no erroneous
description, much less deliberately, of the item to be
procured. It is not so described only to keep out small
scale industries or the MSSIDC. It is submitted that
even suppliers are eligible to participate. If suppliers
arrange to supply the goods through manufacturers, then
details of such manufacturers have to be furnished and
with supporting materials. There would be verification
of the manufacturing units in order to arrive at an
informal decision. There is, therefore, no attempt to
keep out anybody, as falsely alleged. There is no
violation of the Constitutional mandate either.
40] Shri Dhakephalkar has brought to our notice the
tender conditions. He would submit that the law is that
one who participates in the process and submits his bid,
cannot turn around and question the terms and conditions
of the tender notice. He would submit that there is no
procurement of any items reserved for the MSSIDC.
41] In that regard, he invites our attention to the
Government resolution dated 1.12.2016 (Annexure 'C') to
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submit that the Preamble to the same would indicate as to
how the policy has been undergoing a rapid change. It is
referred in the Preamble of this Government resolution
that after several suggestions were received, a
comprehensive policy was under contemplation for
procurement or purchase of the items. Now, the
Government has decided that the procurement or purchase
would be on the lines indicated in this Government
resolution. Shri Dhakephalkar would submit that this is
a Government resolution outlining the procedure for
procurement and purchase of goods and articles by various
Government departments. To be precise, this is a revised
Manual or Rule Book. This is not a Government
resolution, which is for the MSSIDC specific. Therefore,
no assistance can be derived from this Government
resolution. While outlining the policy of procurement
and purchase, the Government invites attention of the
departments concerned to the order passed on 23.3.2012 by
the Department of Micro and Small Industries, Government
of India. The Government of India reserves 241 items for
purchase through registered micro and small industries.
The purchase or procurement has to be by tender system.
WP 2758/17 & another
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In this procurement, only these micro and small
industries can participate. It is in this regard,
Schedule 17 is referred in Clause 15 of this Government
resolution. That pertains to the items, which cannot be
procured from these micro and small industries as they
cannot participate. However, in this very Schedule,
there are some reserved items and for that, as per
requirement and by making groups, separate tenders can be
invited. It is in these circumstances that 241 items,
which are reserved for micro and small industries are
concerned, in procuring them through such industries, the
big industrial houses cannot participate in the tender
process. It is in these circumstances that Schedule 8 is
also referred, which grants an exemption to register
micro, small and medium industries from payment of tender
fees and earnest money deposit (EMD).
42] Then, Shri Dhakephalkar invites our attention to
the Rule Book itself and submits that the Chapters
thereof and the Schedule would indicate that in Clause
5.14, there are some items reserved for micro and small
industries and they have been given certain facilities.
WP 2758/17 & another
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Shri Dhakephalkar submitted that this Clause cannot be
read in isolation. It will have to be read together with
the other Clauses. Shri Dhakephalkar, therefore,
justifies the action of the authorities. He also brought
to our notice Clause 5.17 and then heavily relied upon
the Schedules. Shri Dhakephalkar invited our attention
to Schedule 14, which is Clause 6.14, but referable to
Clause 5.11. This Schedule makes a list of items, which
are produced in prisons. In that, Item No.63 is styled
as Kothi "/kkU; fdaok brj oLrw lkBfo.;klkBh". Shri Dhakephalkar
highlights the difference in the heading of the Schedules
to submit that when it comes to a micro and small
industries, and the items reserved for them in Schedule
17 referable to Clause 5.14, it would be apparent that
Sr.No.215 is titled as tin container, tin tray, tin mess.
Shri Dhakephalkar submits that these are tin items. If
these are the items, which are to be procured, then it is
evident that the requirement of the respondent no.2 of
airtight containers is distinct. There is absolutely no
confusion. Thus, the item to be procured, and which is
subject matter of the present tender, is not reserved for
the MSSIDC alone. Shri Dhakephalkar submits that while
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malnutrition was rightly prevalent in India amongst
growing children, nutritional deficiencies amongst school
going age group cannot be neglected. Malnutrition not
only gives rise to morbidity and mortality, but also
prevents a child from developing in a fully functional
atmosphere. It adversely affects his education.
Programme of providing mid-day meal in schools is
designed to assist the child in several ways. It is a
part and parcel of national programme of nutritional
support to primary education commonly known as "Mid-day
Meal Scheme". That improves the attendance in the
school. A centrally sponsored scheme, namely, 'Mid-Day
Meal Scheme' is being implemented in the State since a
decade. The scheme is popular in rural as well as urban
areas in the State. The food grain items are supplied to
the schools and cooked meal is provided to the students.
It is found that there is a necessity of storage
containers, which will be provided to the schools in
rural areas. Accordingly, it was decided by the
Government of Maharashtra, with the concurrence of
Central Government, to provide airtight containers for
storage of food grains to the schools of local self-
WP 2758/17 & another
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Governments as well as aided private schools wherein Mid-
Day Meal Scheme is being implemented. Hence, it is a
misnomer to turn the item 'Airtight Container' as an
equivalent to "/kkU;kph dksBh". It is an item known to the
trade and commercial world by itself independently of a
storage container for a tin container. It is a
container, which ought to be airtight, not allowing
moisture to shift through and spoil the food grains.
That, such food grains have to be stored so as to enable
a mid-day meal to be prepared and served in time.
Therefore, the stock has to be maintained. For
maintenance of the stock, quality material, which will
not spoil or destroy the food grains inside it, was
required. Hence, the trade and the market understood
these items distinctly. There is no confusion, much less
any attempt to side-track the MSSIDC. The whole argument
of Shri Dixit is mis-conceived.
43] Then Shri Dhakephalkar relies upon the notice
inviting tenders and Clause 14 thereof to indicate that
submission of samples is envisaged so as to test food.
Since the scheme has to be implemented in all the primary
WP 2758/17 & another
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schools across the State, which are about 86,000
approximately in number, then, it is evident that all
care and caution has to be taken. The manufacturing site
would have to be inspected, that is taken care of by
Clause 17. The expenses for sample testing, verification
of manufacturing unit have to be provided by the bidder.
Else, the bid can be rejected as non-responsive.
44] We have then been taken to the qualifications of
the bidder as prescribed by Clause 3 of Section 1. Shri
Dhakephalkar submits that the argument, that is built,
that the MSSIDC sponsoring manufacturing units and in
small scale sector have been ignored in preference to
traders and suppliers, but without a manufacturing back
up, is erroneous. Notice inviting tender is to invite
offers and bids for supply of airtight containers for
storage of food grains for schools under Mid-Day Meal
Scheme in rural area of the State of Maharashtra. So
long as it is a supply of airtight container, then for
its durability, quality etc., the samples have to be
tested. Since a huge number of containers will be
required regularly, it is necessary to inspect the
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manufacturing units and satisfy oneself about the
capacity of the units to manufacture this item on a large
scale. Therefore, this is not a bid, as argued by Shri
Dixit, reserved for only top class and high end
manufacturers or suppliers. Further, there is no
erroneous or wrong description of the item. Whether the
traders or manufacturers, the concept is that they should
be able to supply quality material. It is in these
circumstances that Shri Dhakephalkar would rely upon the
order dated 20.2.2017 and the affidavit of the
Statistical Officer of the Directorate of Primary
Education filed on behalf of respondent nos.1 and 2. In
this reply affidavit, Shri Dhakephalkar would rely on the
contents of paragraph nos.9 and 10. It is submitted that
there is no truth or substance in the allegation that the
corrigendum was not known to most of the bidders. Shri
Dhakephalkar submits that the date for submission of
samples, sample testing fees and unit verification fees
was 4.2.2017 at 4-00 p.m. However, considering the pre-
bid queries raised by the prospective bidders in writing
and orally to prepare themselves accordingly to
participate in the tender, corrigendum was issued. This
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corrigendum was known to the participants because it
appeared on the Website on 30.1.2017. The date was
postponed to 15.2.2017. In the circumstances, the second
corrigendum was only to correct the typographical error.
Even that was given wide publicity. To urge that
something has been done secretly or clandestinely, is
incorrect and rather irresponsible allegation. Shri
Dhakephalkar would, therefore, submit that there is
complete transparency.
45] Finally, Shri Dhakephalkar would contend that
the Divisional Manager of the MSSIDC has unnecessarily
jumped in the arena and it is not a healthy sign that he
accuses the Department of Primary Education of the
Government of Maharashtra of favoritism and nepotism.
There is no deliberate or intentional exclusion of the
MSSIDC. The MSSIDC could not have urged that the item
to be procured was reserved for it. Even when the MSSIDC
was sponsoring a unit, not only the samples were tested,
but the unit verification was undertaken. The unit
verification revealed that the set up does not match the
demanded standards. Enquiry of facility of utilization
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of Marathwada Auto Cluster was undertaken. A letter
dated 31.1.2017 is a letter on the letter-head of
Marathwada Auto Cluster addressed to Divisional Manager,
MSSIDC, Aurangabad. This letter itself clarifies that
this is a common facility centre having facilities as
enlisted and set out therein. These facilities are
available to all industrial establishments on use and pay
basis. The facilities mentioned in the letter are
available and can be used for manufacturing any product.
Thus, a cluster and providing services is not an
independent manufacturing unit of a specific small scale
industry. It is a service or a facility provided in
common and available to all industrial establishments on
use and pay basis. How that was inadequate and found to
be such, is duly explained in the affidavits and,
therefore, Shri Dhakephalkar would submit that the
allegations made against the respondent nos.1 and 2 be
rejected.
46] The allegations, made in the affidavit of Shri
Pramod Naik, have also been met and specifically denied.
The affidavit of the Statistical Officer, pursuant to the
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order dated 30.6.2017, reveals as to how there is no
substance in the allegation that 30% items are reserved
as per Government resolution dated 1.12.2016 for medium
and small scale industries. Our attention is invited to
paragraph nos.4 and 5 of this affidavit to submit that
the MSSIDC is falling short of various requirements. The
technical evaluation sheet was not complied with by the
MSSIDC. Shri Dhakephalkar then relied heavily on
paragraph no.9 onwards of this affidavit to submit that
the petitioner no.3 is neither the manufacturer nor
having any infrastructure to produce from the unit, which
is referred by them for verification. In the unit
verification, the petitioner no.3 - MSSIDC has provided a
list of two units and those units did not have the
facilities. It is in these circumstances that the
affidavit dated 14.7.2017 and its annexures are relied
upon. The College of Engineering, Pune, addressed a
letter dated 14.4.2017 to the Director of Primary
Education. It is a third party technical expert. The
technical evaluation sheet would indicate as to how the
MSSIDC's bid is not compliant.
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47] Shri Dhakephalkar handed over this sheet with
the remarks and signatures of the officers.
48] With the assistance of Shri V.J. Dixit and P.K.
Dhakephalkar, we have perused the petitions and all the
annexures thereto. We have also perused the affidavits
placed on record with their annexures.
49] At the outset, we must clear the ground for
powers of judicial review conferred on this Court,
particularly in relation to tender matters, which enable
it to scrutinize the decision making process. The Court
cannot question the decision itself, for, the Court is
not possessing the expertise and the experience in such
matters. Secondly, in judicial review, this Court will
not interfere with the version or interpretation of the
terms and conditions of the NIT by the tendering
authority, unless that interpretation results in patent
arbitrariness, discrimination and absurdity. So long as
those in-charge of the tender process deem it fit and
proper to insert conditions and frame them in a
particular manner so as to suit the object and purpose of
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the procurement or purchase, then, the Court will give
unto their wisdom and merely because another view is
possible, will not force its interpretation on the
tendering authority. The High Court does not sit as a
Court of Appeal. These principles are too well settled
to require reference to any judgment.
50] It is unfortunate that both these petitions are
filed by such persons claiming to be fully eligible and
qualified to participate in the tender process, but whose
technical bids were rejected as non-compliant or non-
responsive. Both the petitions are seeking relief so as
to direct the Director of Primary Education to award the
contract to the MSSIDC. The basis or foundation of the
petitioners' claim is that they are sponsored by the
MSSIDC. They have certain credibility and standing in
the market, else the MSSIDC would not have taken their
cause. The first two petitioners in the first petition
have already been referred by us. As far as Writ
Petition No.8643/2017 is concerned, it is conceded that
this petition is also seeking the relief in identical
terms to the earlier writ petition. It is also a
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petition for and on behalf of the MSSIDC, but by one
Shree Ganesh Press N Coat Ind.Pvt.Ltd. It is claimed
that this entity is a private limited company dealing
with manufacture and supply of pressed, surface equipped
components and fabricated assemblies. The registration
certificate of this company is at Annexure 'A' to the
memo of Writ Petition No.8643/2017. It is stated that
this petitioner is supplying goods to various companies
and presently the annual turnover is more than rupees
hundred crores. It is also registered as a small scale
industrial unit. It is also registered under the
Ministry of Micro, Small and Medium Enterprises. There
are near about 100 employees and more than 20 ancillary
units dependent on this petitioner - company. With such
a backing and credibility, it is claimed that it
participated in the tender. Pertinently, the petitioner
in this petition takes up the cause of the MSSIDC. But
in the memo of this petition, it is claimed that this
petitioner independently applied for the contract by
submitting its bid. It is claimed that the same fulfills
the requisite criteria and is eligible for the contract
being awarded. The petitioner - company, along with
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consortium company dealing with the same business, had
submitted the tender as per the tender notice alongwith
all necessary documents and accordingly the respondent
no.2 issued the acknowledgment to that effect. On
specifically questioning Shri Dixit as to how, when there
is an independent participation of the petitioner in this
petition so also as a part, can it be said that it is not
interested in procuring the contract itself, but supports
the cause of the MSSIDC. Shri Dixit, on specific
instructions, states that though the petition is filed by
one such bidder, eventually at some time or the other,
they have been assisted by the MSSIDC and all of them
thought that their cause would be prominently and
properly presented by the MSSIDC alone. The petitioner
in this petition urges that it was informed that as per
the terms and conditions of the tender, unit verification
and machinery verification will take place on 5.3.2017.
It is stated that the unit was inspected. The unit
verification report, copy of which was forwarded,
indicates that the facilities were found lacking. There
was an objection raised to the documents of the
petitioner - company by one Sai Trading Company. It is
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alleged that the petitioner has not submitted the
notarized registration, documents at Annexure 'D' are not
original, BSI certificate is not submitted and there is
no stamp on the test report. When such objections were
raised, the petitioner promptly complied with them by
uploading the certificate / documents and also pointing
out that even the BSI certificates uploaded by Krishi
Intratrade, Shalaka Infratech and Sai Trading are not
valid as per tender condition. It is, therefore, evident
that by Annexure 'J' to Writ Petition No.8643/2017, the
petitioner therein tries to justify the acts performed,
namely, compliance with the terms and conditions of the
tender. It is emphasized that this unit is fully
eligible for award of the contract. This unit makes a
reference to the MSSIDC's petition. This is an obvious
attempt because this petitioner was informed by the
respondent no.2 in writing on 13.6.2017 that the
committee noticed that there were several deficiencies in
the documents supplied and forwarded. When such a
communication was received and the petitioner responded
to it, it realized that if not in the petition of the
MSSIDC, atleast by an independent petition, it can obtain
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a relief through the MSSIDC for itself.
51] Yet, it goes on making these allegations and
which are to be found from paragraph no.2 of memo of Writ
Petition No.8643/2017 against several bidders and
particularly the respondent nos.5 and 7 to that petition.
52] It is common ground that the Writ Petition
No.8643/2017 was filed only to strengthen the case of the
MSSIDC, we do not think that we should assign separate
reasons.
53] Suffice it to note that the evaluation by the
committee, which is an expert body, is not required to be
interfered with in our limited jurisdiction. The
composition of the tender evaluation committee indicates
that it is not only the Director of Primary Education
Shri Sunil Chavan, the Deputy Director of Education Shri
Temkar, but one Deputy Secretary in the Department of
Finance, Government of Maharashtra, is the Member,
together with one Shri Pramod Patil, who is Joint
Secretary in the Department of School Education and
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Sports, Shri Sharad Gosavi, Deputy Director of Primary
Education, Pune, as Member and Accounts Officer,
Directorate of Primary Education, Pune, and there is the
Head of the Department, Metallurgy, Government
Engineering College, Pune, another Professor, several
third party experts and several others. The comments and
remarks with regard to each of the units / participants
would indicate that the bids have been evaluated
impartially and transparently. There is an expert
opinion of the College of Engineering as well. In the
circumstances, we do not think that in a writ
jurisdiction, we can sit in judgment over the conclusions
of this committee. Apart from this, about technical
evaluation sheet, what we find is that the remarks
indicate the efforts taken by the committee and its
members. The MSSIDC could not comply with several vital
terms and conditions. It failed to submit some important
certificates. The requirement of GI sheet manufacturers,
assistance letter be provided alongwith material test
certificate of GI sheet, the MSSIDC did not submit the
test report. A copy of the Chartered Accountant
certificate for unit worth was also not submitted qua
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individual units sponsored by the MSSIDC. The MSSIDC was
not placing a bid for itself, but for its member units.
It was, therefore, expected that atleast about some
members, data and information, as demanded in the NIT,
would be submitted. An undated balance-sheet was
submitted for financial years 2014-15 and 2015-16, when
the requirement was that it was for three years, namely,
2013-14, 2014-15 and 2015-16. An adverse opinion was
also given by the Accountant General (Audit-III). There
were several documents, such as registration certificate,
excise registration, ESI certificate and a declaration
that the facility of separate inhouse laboratory for
inspection and quality control within the factory
premises, were not filed because no declaration was
submitted. The unit, which was inspected, did not have
the machinery. The list of machineries was also not
certified by the Chief Engineer. The laboratory sample
may have been submitted, but unit verification report of
the Technical Committee was adverse and in the negative.
53] It is in these circumstances that we are of the
opinion that in a matter of this nature, the MSSIDC
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should have remained neutral. It should not have in its
enthusiasm made allegations, and which could safely be
termed as vague, wild and irresponsible. They were not
supported by any materials. Merely because the MSSIDC
was sponsoring some units, which were not selected, to go
ahead for opening of their financial bids, does not mean
that the entire process is arbitrary, discriminatory,
much less mala-fide. The allegations that the tender
conditions are worded in a particular manner only to keep
out the MSSIDC is, to say the least, without any
substance. We have clarified and we agree with Shri
Dhakephalkar, that there is a difference between a mere
container or Kothi for storage of food grains, a tin
container and the airtight container. The last one in
this order was the requirement of the respondent nos.1
and 2. They had specifically worded their item as
Airtight Container and did not provide any leaving so as
to pass off any other item as an Airtight Container. If
the requirement was specific, then, bearing in mind the
laudable object and purpose, we do not expect the
respondent nos.1 and 2 to compromise in any manner on the
quality of the product. It must be the exact item and as
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demanded. The supply should be of this very item and not
any other, much less a substitute. In the circumstances,
we do not think that the MSSIDC can derive any advantage
from the Government resolution dated 1.12.2016 and
particularly the Schedule 17 thereto. That item, which
is reserved for the MSSIDC, is distinct than the one for
which a tender was floated. The MSSIDC also cannot
derive any mileage because it sponsors units in the small
scale sector. There was no intention to keep it out.
Merely because the MSSIDC is set up by the Government
with the object of encouraging micro, small and medium
scale enterprises, the assistance by the MSSIDC was
expected. The participation is also understood.
However, going beyond that, and out of frustration and
desperation, making allegations merely because it is
excluded, is not befitting an organization and set up
like the MSSIDC. It should have been cautious in the
language it used in the pleadings. For instance, in the
affidavit of the Divisional Manager, the MSSIDC admits
that the small scale industries are not having capacity
to bid individually. So far so good. However, it
accuses the respondent no.2 of favouring other bidders
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who are traders and not manufacturers. We do not want
any substantiation or proof for such allegations. Then,
we have another allegation of a cartel bing formed by
some of the bidders in respect of supply of what is
styled as 'Kothi' or container and which the MSSIDC
understands as an Airtight Container. Then, what we have
is an affidavit of one Nitin Ganeshrao Gangakhedkar,
Divisional Manager of the MSSIDC, Aurangabad, and though
the MSSIDC participates in the joint meeting held on
5.7.2017, it goes ahead and terms the tender notice and
the conditions therein as an eye-wash. He says that when
he accused the respondent no.2 of protecting other
bidders, he was speechless. It is then stated in this
affidavit that the petitioners have drawn a video
shooting of the inspection by the committee and the same
was shown to the respondent no.2 in the meeting. After
looking at the said video shooting, he was speechless.
Then, it is claimed that the petitioners demanded
inspection of technical verification report in terms of
the order dated 6.4.2017, but that was denied. We do not
expect affidavits employing and using such language by
public officials, not in the least, of the MSSIDC. It
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has not in any manner assisted its member units by
accusing another Department of the Government. This, to
our mind, hardly serves the cause of 41 entrepreneurs
represented by the MSSIDC. We are, therefore, surprised
by such a response from the MSSIDC and that its officials
have taken the matter personally.
54] Having found from perusal of all the relevant
papers and documents that there is no substance in any of
the allegations made by the MSSIDC, the writ petitions
must fail. They are accordingly dismissed, but without
any order as to costs. Rule is discharged.
(MANGESH S. PATIL, J.) (S.C. DHARMADHIKARI, J.)
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