Bombay High Court
Shrishri Infrastructure Pvt Ltd ... vs The State Of Maharashtra And ... on 3 December, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
1 904 ra.103.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
904 REVIEW APPLICATION (CIVIL) NO.103 OF 2021
IN WP/6252/2021
SHRISHRI INFRASTRUCTURE PVT. LTD.
THROUGH ITS AUTHORIZED PERSON
ANIL PRABHAKAR DESHPANDE
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioner/Applicant : Mr. S. P. Brahme, h/f Mr. S. H. Tripathi.
AGP for Respondent/State: Mr. S. P. Tiwari.
Advocate for Respondent Nos.2 to 4: Mr. M. S. Sonawane.
Advocate for Respondent No.5: Mr. P. N. Nagargoje, h/f Mr. D. B. Thoke.
...
CORAM : S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
DATE : 03rd December, 2021.
PER COURT:
. The petitioner seeks review of the judgment and order
passed by this Court dated 20th September, 2021 passed in Writ
Petition No.6252 of 2021 thereby dismissing the writ petition.
2 Mr. Brahme, learned counsel for petitioner submits that
the review is filed on three counts; (i) there is an error apparent on the
face of record, (ii) circular dated 17th September, 2019 wherein it
mandates that opportunity is to be given to the tenderer to comply with
the deficiencies, is not adhered to by the respondents, and (iii) the
technical bids and financial bids were opened on the same day. As
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per the conditions in the tender, the financial bids are to be opened
after five days of the opening of the technical bids. This Court while
delivering the judgment has not considered the said aspect. The
learned counsel submits that there would be a loss to the Public
Exchequer. The respondent No.5, who is selected, has quoted
Rs.3,75,00,000/- whereas the petitioner has quoted Rs.3,05,00,000/-.
The technical bid of the petitioner was rejected on technical ground.
The same is not permissible. When Public Exchequer is put to loss,
the said aspect needs to be considered. The learned counsel relies on
the judgment of the Apex Court in the case of Municipal Council,
Neemuch Vs. Mahadeo Real Estate and others , reported in, (2019) 10
Supreme Court Cases 783.
3 We have also heard Mr. Sonawane, learned counsel for
respondent Nos.2 to 4.
4 The technical bid of the petitioner was rejected on the
ground that the petitioner did not annex the declaration alongwith the
tender document. The petitioner was required to annex the
declaration of the contractor on the contractor's letter head in the PDF
format.
5 It appears that in the judgment under review, this Court
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had noted that the technical bids were opened on 21st December, 2020
and the financial bids were opened on 29 th January, 2021. However, it
appears that the technical bids as well as financial bids were opened
on the same day i.e. on 29th January, 2021. The tender document also
contained a clause that the technical bids and financial bids may be
opened on the same day.
6 Be that as it may, the fact remains that the petitioner did
not annex the copy of the declaration that was required as per the
terms of the tender. The instructions to the tenderer specifically
required annexing the declaration. The important note was also
published in the tender that omission to attach any of the documents
as contained under the head "instructions to the tenderer" is likely to
invalidate the tender.
7 Reliance is placed on the circular dated 17 th September,
2019 to contend that opportunity ought to have been given to remove
the deficiencies. The circular requires that if the information given is
incomplete, then on the said ground the tenderer should not be
disqualified and opportunity be given to the tenderer to give the
complete information. In the present case, the date for filling in the
tender was extended at the request of the petitioner. Even after
extending the date for filling in the tender, the petitioner did not annex
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the declaration as was required under the instructions to the tenderer.
It is not a case of incomplete information, but the fact is that the
document i.e. declaration of the contractor on the contractor's letter
head in the PDF format was not annexed. In light of that, the tender of
the petitioner was rejected.
8 The petitioner would have been justified in making a
grievance of opening the technical bids and financial bids on the same
day in case the petitioner would have been disqualified on account of
submitting incomplete information. In the present case, the petitioner
did not submit the document itself. On that count, it is rejected.
9 The scope of judicial review of an administrative action is
limited. The petitioner was made known of the fact that filing of
declaration of the contractor on the contractor's letter head in the PDF
format is necessary and omission to attach the said document is likely
to invalidate the tender. In spite of that, the petitioner did not annex
the document though time was extended for filling in the tender.
10 The question of Public Exchequer would have been
considered, had the petitioner being disqualified on the ground which
could be rectified. It is trite that in a writ jurisdiction, more particularly
in contractual matters, the Court would be more concerned with the
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decision making process than the decision itself. We do not notice any
malafides on the part of the respondents while rejecting the technical
bid of the petitioner. No error apparent on face of record.
11 In view of that, the review application is rejected. No
costs.
[ R. N. LADDHA, J. ] [ S. V. GANGAPURWALA, J. ]
nga
