Bombay High Court
V.K. Enterprises, Chandrapur ... vs State Of Maharashtra, Through ... on 5 October, 2021
Bench: S.B. Shukre, Anil S. Kilor
18wp1947, 2296.2021(JUG).odt
1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.1947 OF 2020
WITH
WRIT PETITION NO.2296 OF 2021
WRIT PETITION NO.1947 OF 2020
V.K. Enterprises through its Proprietor
Shri Kundan Dhore, Flat No.4, Samarth
Apartments, Behind Kumbi Samaj Bhavan,
Laxminagar (Wadgaon), Chandrapur. .... PETITIONER
// VERSUS //
1) State of Maharashtra,
through Secretary, Department of
Energy and Power,
Mantralay, Mumbai 32.
2) Maharashtra State Power Generation
Company through its Chairman cum
Managing Director, Prakashgad, Mumbai.
3) The Chief Engineer, (Operation & Maintenance),
Chandrapur Super Thermal Power Station,
Maharashtra State Power Generation
Company Limited Chadrapur-442404.
4) M/s. Adore Contractors Pvt. Ltd.
Through its Director, Plot No.135
Near SBI Colony, Arvind Nagar, Chandrapur. .... RESPONDENTS
WITH
WRIT PETITION NO.2296 OF 2021
V.K. Enterprises through its Proprietor
Shri Kundan Dhore, Flat No.4, Samarth
Apartments, Behind Kumbi Samaj Bhavan,
Laxminagar (Wadgaon), Chandrapur. .... PETITIONER
// VERSUS //
1) State of Maharashtra,
through its Secretary, Department of
Energy & Power, Mantralaya, Mumbai 32.
::: Uploaded on - 06/10/2021 ::: Downloaded on - 07/10/2021 03:21:28 :::
18wp1947, 2296.2021(JUG).odt
2/9
2) Maharashtra State Power Generation
Company Limited through its Chairman
cum-Managing Director, Prakashgad, Mumbai.
3) The Chief Engineer, (Operation & Maintenance),
Chandrapur Super Thermal Power Station,
Maharashtra State Power Generation
Co. Ltd. Chadrapur-442404. .... RESPONDENTS
Shri Anand Parchure, Advocate for petitioner
Shri D.P. Thakare, Addl.GP for respondent No.1/State
Shri M.P. Khajanchi, Advocate for respondent Nos.2 and 3
Shri Nagpure, Advocate for respondent No.4 in WP No.1947/2020
________________________________________________________________
CORAM : SUNIL B. SHUKRE AND
ANIL S. KILOR, JJ.
DATE : 05th OCTOBER, 2021.
ORAL JUDGMENT: [PER:ANIL S. KILOR, J.]
In both these petitions, the challenge involved is to the
qualifying norm as regards experience, prescribed in the E-tender
for annual work contract for milling plants maintenance at CSTPS
plants, Chandrapur. As such, they are heard together.
2.. Brief facts emerge from both the petitions are as under:
It is the case of the petitioner that, after issuance of tender
notice No.T-75823 in the month of October, 2018, the petitioner
who is an approved boiler repair Engineer and contractor, found
one of the qualifying criteria as regards experience as unreasonable
18wp1947, 2296.2021(JUG).odt
and favoring a particular contractor. Therefore, he made
representation, which according to the petitioner, was considered
and alteration was made in the qualifying norms. The said
alteration was challenged in the Writ Petition No.3729 of 2019
before this Court by one of the bidders which came to be dismissed.
3. Thereafter, a review petition was filed, which also came to be
dismissed.
4. However, thereafter, the impugned E-tender notices dated
02.07.2020 and 07.06.2021 were issued and the same qualifying
criteria as regards experience, which was there prior to alteration,
has been prescribed. Hence, by these petitions, the petitioner is
challenging qualifying criteria on the ground of unreasonableness.
5. We have heard learned counsel for respective parties.
6. Shri Parchure, learned counsel for the petitioner submits that
the impugned E-tender notices, containing the qualifying criteria as
regards experience of having successfully completed similar nature
of work, is arbitrary and unreasonable and it is tailor-made to
favour a certain contractor. In support of his contention, he relies
18wp1947, 2296.2021(JUG).odt
upon the judgment of Co-ordinate Bench of this Court in the case of
Jalgaon Golden Transport Pvt. Ltd. Vs. Union of India and others 1.
7. It is submitted that once this Court in Writ Petition No.3729 of
2019 held the alteration made in the qualifying criteria prescribed
in the tender notice published in the month of October-2018 was to
avoid cutthroat competition and to have participation of maximum
bidders, now the respondents cannot again prescribe higher criteria
than the criteria held to be valid by this Court. By arguing so, the
petitioner prays for declaration that the qualifying criteria as
regards having experience of successfully completed similar nature
of work, as unreasonable.
8. Per contra, Shri Khajanchi, learned counsel appearing for
respondent Nos.2 and 3 opposes the present petitions and submits
that the qualifying norms have been prescribed taking into
consideration the public interest.
9. It is submitted that after taking into consideration the bench
mark parameters as prescribed by MERC, qualifying norms have
been prescribed. It is further submitted that the expert committee,
1 2020(6) Mh.L.J. 532
18wp1947, 2296.2021(JUG).odt
while prescribing the qualifying norms, has taken into consideration
the various factors, such as labour wage revision, preparation of
one year of annual maintenance contract instead of two years (as
was earlier), the latest guidelines issued by the Government of
India, Ministry of Finance Department, which are contained in
"Manual for Procurement of Works" dated 06.06.2019. By arguing
so, he has prayed for dismissal of the present petitions. In support of
his contention, he has placed reliance upon the judgment in the case
of Shimnit Utsch India Private Limited and another Vs. West Bengal
Transport Infrastructure Development Corporation Limited and
others1.
10. To consider the rival contentions of the parties, we have
perused the record and gone though the relevant judgments.
11. Since the issues involved in both these petitions are relating
to qualifying criteria as regards experience of having completed
successfully similar nature of work, it is proper and apposite to refer
to the qualifying criteria which was prescribed in the tender notice,
in the month of October-2018 and which was subsequently altered
and again prescribed in the impugned E-tender notices. The criteria
1 (2010) 6 SCC 303
18wp1947, 2296.2021(JUG).odt
which was prescribed in the tender notice of October-2018 is as
under:
"2. Experience having successfully completed similar works
during last 7 years ending last day of month previous to the one in
which applications are invited should be either of the following:-
a. Three similar completed works costing not less than
the amount equal to 40 % of the estimated cost.
OR
b. Two similar completed works costing not less than
the amount equal to 50 % of the estimated cost.
OR
c. One similar completed works costing not less than
the amount equal to 80 % of the estimated cost."
12. The above qualifying criteria was then altered as follows:
"a) Experience having successfully completed similar nature
work during last 7 years ending last day of month previous to the
one in which application are invited should be either of the
following:-
1. Three similar competed works each costing not less
than the amount equal to 20 % of the estimated cost
for one year.
OR
2. Two similar competed works each costing not less
than the amount equal to 25 % of the estimated cost
for one year.
OR
3. One similar competed work costing not less than the
amount equal to 40 % of the estimated cost for one
year. "
13. The above referred qualifying criteria before alteration and
after alteration shows that the alteration was made in respect of the
percentage of amount of similar completed works and thereby the
earlier criteria of 40% has been brought down to 20 %, the criteria
of 50 % has been bought down to 25 %, whereas, criteria of 80 %
18wp1947, 2296.2021(JUG).odt
has been brought down to 40%. In the impugned E-tender notices
again the earlier criteria of 40%, 50% and 80% has been prescribed,
which is under challenge in the present petition.
14. In the case of Shimnit (supra), the Hon'ble the Supreme Court
of India has held that, the government policy can be changed with
changing circumstances and only on the ground of change, such
policy will not be vitiated. It is further held that, the Government
has a discretion to adopt a different policy or alter or change its
policy calculated to serve public interest and make it more effective.
15. In the teeth of the above referred well settled principles of
law, it cannot be said that, because, this Court dismissed Writ
Petition No.3729 of 2019, upholding the alteration made in the
qualifying criteria as referred above, it is frozen for all times to
come and respondents are obliged to persist with the aforesaid
altered conditions. Thus, we do not find any substance in the
submission of the petitioner that once this Court has held the
alteration as proper, the respondents cannot change the qualifying
criteria.
18wp1947, 2296.2021(JUG).odt
16. As regards the contention of the petitioner that the conditions
are tailor-made. Firstly, there are no sufficient pleadings made in
support of the said allegation. Moreover, it has come on record that
including the petitioner, five bidders have participated in the
process, out of which including the petitioner, two have been found
ineligible and remaining three were found eligible. Thus, it is
difficult to accept the contention of the petitioner that, the
impugned qualifying criteria is tailor-made and prescribed to favour
a specific contractor.
17. It is a well settled law that, a tender is an offer. The person
by whom tender is made must be able to and willing to perform his
obligation. The terms of the invitation to tender cannot be open to
judicial scrutiny because the invitation to tender is in realm of
contract. However, a limited judicial review may be available in
cases where, it is established that the terms of the invitation to
tender were so tailor-made to suit the convenience of any particular
person with a view to eliminate all others from participating in the
bidding process.
18. Here in the present case, the petitioner failed to point out any
material and pleadings to show that the impugned qualifying
18wp1947, 2296.2021(JUG).odt
criteria is tailor-made to suit the convenience of any particular
person.
19. Accordingly, we are of the considered opinion that the
petitions fail on this ground and there is no substance in the present
petitions.
20. Accordingly, we pass the following order:
The petitions are dismissed.
However, at the request of learned counsel for
the petitioner, the interim order dated 02.07.2021,
granted in Writ Petition No.2296 of 2021 would continue
for further two weeks and the same shall stand vacated
automatically on completion of period of two weeks from
the date of this order.
No order as to costs.
JUDGE JUDGE
nd.thawre
