Bombay High Court
M/S Shalimar Transport And ... vs The Government Of Maharashtra And ... on 13 October, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
1 wp 9279.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
95 WRIT PETITION NO.9279 OF 2021
M/s. SHALIMAR TRANSPORT AND CARTING CONTRACTOR
THROUGH ITS GPA HOLDER
SHAIKH JUNAID SHAIKH HAMEED
VERSUS
THE GOVERNMENT OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioner:
Mr. V. D. Sapkal, Senior Advocate i/b. Mr. Sapkal
Sandip R and Mr. Sakhare A. S.
AGP for Respondents/State: Mr. S. G. Karlekar
...
CORAM: S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
Reserved For Orders On: 27.09.2021
Order Pronounced on: 13.10.2021
ORDER (Per S. V. Gangapurwala, J.):
1. The Petitioner assails the rejection of
the technical bid.
2. Pursuant to the Tender Notice for
Transportation of Food Grains and Other Essential
Commodities to the Fair Price Shops in District /
Region of MTRA for a period of 3 years the
Petitioner filled in the Tender, the Technical Bid
2 wp 9279.2021
of the tenderer is rejected basically on the
ground that the Petitioner does not qualify the
experience criterion.
3. Mr. Sapkal, learned Senior Advocate for
the Petitioner contends that the tenderer should
possess the experience of 33% of the work of
transportation which has been carried out during
previous three years in the District where he is
filing the Tender for the District / Zone and in
last 5 years for at least 1 financial year the
tenderer should have done the work of Government /
Semi-Government transportation of goods. The
learned Senior Advocate submits that the
Petitioner is required to possess the experience
for the work of 76,293 Metric Tones. The
respondents are calculating it as 76,293 Metric
Tones in the First Phase and 76,293 in the Second
Phase. The 33% of the work of First Phase itself
is sufficient criterion. The learned Senior
Advocate for the Petitioner to buttress his
submission relies upon the affidavit filed by the
State in Writ Petition No. 750 of 2021 with
3 wp 9279.2021
connected writ petitions before the Principal
Seat decided on June 28, 2021. In the said matter,
affidavit is filed by the State Government
clarifying the clause of work experience involved
in the present tender. The clarification, as filed
by the State, is reproduced in the said Judgment.
The learned Senior Advocate submits that as per
the said clarification the State has clarified
that if any tenderer fits into the aforesaid
entire description, the tenderer will not be
disqualified, only on the ground that the
tenderer has the experience of transportation of
only the first phase and not of the second phase,
of the two-phases execution of the scheme.
According to the learned Advocate, the State now
cannot turn around and contend otherwise.
4. Mr. Karlekar, learned A.G.P. for the
respondents / State submits that the tender
process in question is in respect of the
Transportation of Food Grains and Other Essential
Commodities to the Fair Price Shops from FCI
Warehouse. The clarification given by the State in
4 wp 9279.2021
it's affidavit-in-reply in Writ Petition No. 750
of 2021 with connected writ petitions before the
Principal Seat would not enure to the benefit of
the Petitioner. It was clarified that the
requirement of 33% experience of the work
transportation of doorstep delivery scheme could
be considered cumulatively if the same was in only
one stage of transportation but equal to the
experience of transportation of both Phase 1 and
Phase 2, as required under Clauses 5.1 and 5.2.
The eligibility as stipulated in Clauses 5.1
and 5.2 are so prescribed to select efficient
transport contractor with sufficient basic
resources to efficiently and seamlessly execute
the transportation of grains.
5. We have considered the submissions
canvassed by the respective parties.
6. The terms of the tender are not disputed.
The tender document clarifies that the bidder is
bound by all the Terms and Conditions set out in
the tender document and Government Resolution
5 wp 9279.2021
dated 15.01.2021. The subject matter of debate is
interpretation of Clauses 5.1 and 5.2 of the
Government Resolution dated 15.01.2021. The
Government Resolution is in a regional language
and Clauses 5.1 and 5.2 read thus -
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fufonkdkjkl ekxhy 5 lyx vkfFkZd o"kkZiSdh fdeku ,dk vkfFkZd
o"kkZpk 'kkldh;@fue'kkldh; vUu/kkU; okgrqdhP;k dkekpk
vuqHko vlkok- fufonkdkjkpk dkekpk vuqHko gk rks T;k
ftYg;[email protected] fufonk Hkjhr vkgs] R;k ftYg;ke/;s ekxhy
3 o"kkZr >kysY;k okgrqdhP;k dkekP;k 33 VDds es- Vu {kersbrdk
vlkok- lnjhy vuqHko gk T;kP;k ukos fufonk Hkj.;kr ;sr vkgs
R;kP;kp ukos vl.ks vko';d vkgs-
5-2 mijksDr ifjPNsn dzekad 5-1 e/;s uewn dkekpk vuqHko gk }kj
iksp ;kstuk fdaok ;k ;kstus'kh lk/kE;Z vl.kk&;k [email protected];
'kklukP;k vU; ;kstukaP;k [email protected] okgrqdhP;k dkekpk
vuqHko vl.ks vko";d vkgs- dsanz 'kklu] jkT; 'kklu o
fue'kkldh; laLFkkadMhy okgrqdhP;k dkekpk vuqHko xzkg;
/kj.;klkBh ;k loZ dkekaP;k vkns'kkP;k izrh o l{ke vf/kdk&;kaps
vuqHko izek.ki= lknj djkos ykxsy-**
The english translation of the same reads
thus -
"5.1) Work Experience :
Tenderer should have the
experience of the work of Government / Semi-
Government food grain transportation of
minimum one year out of previous five
continuous financial years. Work experience
of the tenderer should be upto the capacity
of 33% of the work of transportation which
has been carried out during previous three
years in the district where he is filling
the tender for district/zone. It is
necessary that the said experience should be
in the name of the tenderer himself who is
filing the tender.
6 wp 9279.2021
5.2) The experience of the work mentioned at
para 5.1 above should be of doorstep
delivery scheme and work of any other
schemes of Government/Semi-Government
transportation of Central/State Government
similar to this scheme. For considering the
experience of transportation with
Central/State Government and Semi-Government
undertakings, copies of all work orders and
experience certificate of the Competent
Authority will be required to be submitted."
7. The clarification given by the State
Government and as relied by the parties in Writ
Petition No. 750 of 2021 with connected writ
petitions before the Principal Seat reads thus-
" Clarification
(On behalf of the State)
"In respect of interpretation of the
Clauses 5.1 and 5.2 of the Government
Resolution dated 15th January, 2021 and the
consequent RFP issued on 21st June, 2021, it
is clarified on behalf of the State as under.
The eligibility criteria specified in
Clauses 5.1 and 5.2 of the Government
Resolution dated 15th January, 2021 and the
consequent RFP issued on 21st June, 2021 does
also include the contractors, if any, with
the experience set-out hereunder, provided
that they satisfy all other criteria of
eligibility, spelt out in the aforesaid two
documents, including the aforesaid two
clauses 5.1 and 5.2
"Those contractors who have carried out
transportation work only in the first
phase of the two-phase transportation
work, without undertaking the
transportation work related to the second
7 wp 9279.2021
phase, of the scheme, which is the
subject matter of the exercise in issue."
According to the State, not a single such
contractor is available, and the aforesaid
clarification is merely academic in nature.
However, if any tenderer fits into the
aforesaid entire description, such tenderer
will not be disqualified, only on the ground
that such tenderer has the experience of
transportation of only the first phase and
not of the second phase, of the two-phases
execution of the scheme, which is the subject
matter of the exercise in issue."
8. The question would be whether the
experience of 33% of the tender work is required
of First Phase only or cumulatively of the First
and Second Phase, even if the work of second phase
is not undertaken in the earlier contract. The
same is only the bone of contention.
9. It is trite that the principal issuing
the tender knows it's requirement best so also the
purpose underlying the requirement of the work
experience. The clarification as given by the
State Government in Writ Petition No. 750 of 2021
with connected writ petitions and as reproduced
supra has been clarified in the present writ
petition by filing the affidavit-in-reply. In the
8 wp 9279.2021
affidavit-in-reply filed by the State through
District Supply Officer, Aurangabad the said
clarification has been clarified further.
The First Phase and Second Phase of work
deals with the place of transportation. First
Phase of transportation is from Base depot to
Government Godown (Warehouse) and Second Phase is
transportation from Government Godown (Warehouse)
to Fair Price Shop. Clause 5.1 mandates the
minimum experience required by the tenderer to be
eligible to participate in the Tender. The said
clause explicitly provides that work experience of
the tenderer should be upto capacity of 33% of the
work of transportation which has been carried out
during previous three years in the District where
he is filling the Tender for the District / Zone.
10. Clause 5.1 nowhere suggest the tenderer
to possess experience of Phase-I or Phase-II. It
only requires work experience upto 33% of the work
of transportation carried out during past three
years. The said experience may be either in
9 wp 9279.2021
Phase-I or Phase-II. The debate whether 33%
experience of transportation of Phase-I or Phase-
II is irrelevant and is merely entering into
verbal jugglery. Clause 5.1 as reproduced supra
requires work experience of the capacity of 33% of
the work of transportation carried out during
previous three years in the District, meaning
thereby the total work of transportation inclusive
of Phase-I and Phase-II. To illustrate if total
transportation of Phase-I and Phase-II in the
District is 100/- i.e. 50 of each then tenderer
should have experience of 33. The said 33 may be
of First Phase only and he may not have any
experience of Second Phase but if the tenderer has
experience of 25% of the transportation carried
out during previous three years in the District he
cannot say that it is more than 33% of First Phase
so he is qualified. The 33% capacity should be of
the total transportation of the food grains taken
place during previous 3 years and not of only
either First or Second Phase.
10 wp 9279.2021
11. Clause 5.1 is unambiguous and does not
admit of any other interpretation. Phase-I and
Phase-II only denotes the place of transportation
viz. Fist Phase is transportation from Base depot
to Government Godown (Warehouse) and Second Phase
is transportation from Government Godown
(Warehouse) to Fair Price Shop. The same is
detailed in Clauses 1.2 and 1.4 of the Government
Resolution dated 15.01.2021.
12. The petitioner does not possess the
necessary work experience. The technical bid of
the petitioner is rightly rejected.
13. Writ Petition stands dismissed. No costs.
[R. N. LADDHA, J.] [S. V. GANGAPURWALA, J.]
marathe
