Aakar Construction (Jv), ... vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 11 Bom

                                                                        WP.6511.16

                                           1



                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT NAGPUR, NAGPUR.
                                       ...

WRIT PETITION NO. 6511/2016 Aakar Construction (JV) Guru Nanak Ward, Sindhi Colony, Bhandara Through its authorized signatory Mr. Matin Ahmed Qureshi ..PETITIONER

v e r s u s

1) The State of Maharashtra Through Principal Secretary Public Works Department Mantralaya, Mumbai-32.

2)      The Chief Engineer (PWD)
        Public Works Region, 
        Civil Lines, Nagpur.

3)      The Superintending Engineer(LWD)
        Public Works Circle, 
        Gadchiroli.

4)      The Executive Engineer (PWD)
        Public Works Division  No.12
        Gadchiroli. 

5)      M/s  Vijaynand Borewell and Construction 
        Company, Through its Proprietor 
        Shri Annd Shrungarpawar 
        having office Near Durga Mandir 
        Gadchiroli-442605. 

6)      M/s Prashant Construction 
        Through its proprietor 
        Bhushan Samarth, 
        having  office  Near Bhatgirny, 
        Gadchiroli-442 605. 





                                                                                                            WP.6511.16





7)        M/s D.V.Patel   & Co. 
          Through its Proprietor 
          having   office  at Flat No.105, 
          Mahalaxmi  Apartment 
          Bajajnagar, Nagpur.                                                             ...RESPONDENTS

...........................................................................................................................

Mr. F.T. Mirza, Advocate for petitioner Mr. N.S.Rao, Addl. Government Pleader for the respondent nos.1 to 4 Mr. V.N.Morande, Adv. For respondent no.5 Nobody for Respondent nos. 6 and 7 ............................................................................................................................

                                                     CORAM:    B.P
                                                                 . DHARMADHIKARI    &
                                                                                    
                                                                    MRS . SWAPNA  JOSHI, JJ
                                                                                           . 
                                                     DATED :       27  February, 2017.  
                                                                     th

ORAL JUDGMENT: (PER B.P.DHARMADHIKARI, J.)

1. Rule made returnable forthwith and heard finally with consent.

2. Heard Adv.Mirza for petitioner, learned AGP for respondent nos.

1 to 4 and Adv. Morande for respondent no.5. Nobody for respondent nos. 6

and 7.

3. The only question is about interpretation of clauses 21 and 22 of

Notice Inviting Tenders dated 22.08.2016. Those clauses are couched in the

following terms :

"21. Whenever the advantage of such combination of two or more contractors is to to be taken for quoting for a work, the registered partnership deed should be irrevocable till the completion of work for which they have combined and till all

WP.6511.16

the liabilities thereof are liquidated and the share of the contractor of higher category should not be less than 50%. Further the percentage share of the contractor of the lower category in such a partnership/ combination should not be more than his limit of eligibility to quote for works divided by the estimated cost of work put to tender (i.e. when such a percentage is applied to the cost of the work, his share of cost not exceed his own eligibility limit of tendering for works).

22. The lead partners shall meet not less than 50 per cent of all qualifying criteria like annual turnover, single work, quantities of items and Bid capacity above. The joint venture must collectively satisfy the criteria of para annual turnover, single work, quantities of items and bid capacity above. The experience of the other joint partners shall be considered if it is not less than 30 per cent of the qualifying criteria like annual turnover, single work, quantities of items and Bid capacity above."

4. The petitioner admittedly is a joint venture whose lead partner

fulfills all stipulations of eligibility independently, that is, of itself. The lead

or major partner in joint venture is M/s B.K. Construction Company, Pusad;

while M/s Aakar Construction, Bhandara is a partner having only 12%

share. The joint venture formed by them, is the petitioner before this Court.

The petitioner urges that M/s B.K. Construction Co. alone fulfills all terms and

WP.6511.16

conditions and, therefore, non-submission of experience certificate or

documents of M/s Aakar Construction, Bhandara is not relevant. Its tender

cannot be ignored and as petitioner-joint venture is lowest, the work must

be allotted to it.

5. Learned A.G.P. Mr.Rao as also Adv. Morande, opposed these

contentions. According to them, the moment there is joint venture, above

clauses i.e. Clause No.21 and 22 require independent consideration of

constituent partners. Here, no experience documents of M/s Aakar

Construction has been provided and, therefore, that assessment cannot be

undertaken.

6. Adv.Morande is relying upon the Division Bench Judgment of

this Court dated 5th October 2016 in Writ Petition No.5818/2016, more

particularly paragraph 21 therein, to urge that in such circumstances, the

consideration of situations by employer needs to be honoured.

7. Perusal of judgment of Division Bench of this Court dated 5th

October 2016 (supra), reveals that there the question was whether a

particular condition is an essential condition or non-essential in character.

The observations made by the Hon'ble Apex Court in judgment in the case of

Afcons Infrastructure Ltd. vs. Nagpur Metro Rail Corporation, are quoted.

We find that controversy before us is not about essential nature or non-

essential nature of any condition.

WP.6511.16

8. Opening words of clause 21 itself stipulate that only if advantage of

such combination is to be taken for quoting for a work, disclosure as

suggested by the respondents is necessary. The later scheme of clause 21

then stipulates the proportion in which such other partner must have stake

in the project depending upon its standing. This requirement is because

advantage of its standing is being taken by the joint venture. If advantage

is not being sought for and the major partner i.e. M/s B.K. Construction Co.

itself fulfills all norms, clause 21 will have no application.

9. Clause 22, again, requires lead partner to meet not less than 50% of all

qualifying criteria like annual turnover, single work, quantities of items and

bid capacity above. It is not in dispute that M/s B.K. Construction Co. fulfills

these norms. It is thereafter stipulated in Clause 22 that joint venture must

collectively satisfy the criteria of annual turnover, single work, quantities of

items and bid capacity. This exercise of clubbing is not necessary in the

present matter as the lead partner M/s B.K. Construction Co. itself has

satisfied all the norms. The concluding sentence which stipulates that

experience of other joint partner can be considered if it is not less than 30%

of the qualifying criteria, puts everything beyond doubt. It is obvious that

therefore in joint venture other partners may also exist who meet less than

30% of the norms but then their experience cannot be made use of by the

joint venture. Here, as already mentioned supra, the lead partner M/s B.K.

WP.6511.16

Construction Co. is not relying upon the experience of the other partner i.e.

M/s Aakar Construction.

10. In this situation, as language of Clauses 21 and 22 of the NIT is

unambiguous, we find the denial of consideration of eligibility of petitioner in

tender process is unwarranted and unsustainable.

11. The impugned order dated 16.10.2016 (Annexure "F") is

accordingly quashed and set aside. We direct the respondents to proceed

further in the matter in accordance with law while evaluating offer of

petitioner.

12. Writ Petition is, thus, allowed. Rule made absolute accordingly. No

costs.

                          JUDGE                       JUDGE

sahare