Sai Agencies vs The State Of Maharashtra And Ors
2021 Latest Caselaw 13019 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION

                  WRIT PETITION NO. 2076 OF 2021

Sai Agencies                                     )
Through its Sole Proprietor Kiran Jagtap         )
Its office at :                                  )
Sangram Nagar, Behind Police Complex             )
Jalna- 431 203                                   )      ...Petitioner

         Versus
1.       The State of Maharashtra                )
         Mantralaya, Mumbai                      )

2.       Pimpri Chinchwad Municipal              )
         Corporation, through                    )
         Municipal Commissioner,                 )
         Mumbai - Pune Road,                     )
         Pimpri - 411 018                        )

         And                                     )

         Yashwantrao Chavan Rose Garden          )
         Nehru Nagar, Bhosari - 411 026          )

3.       Guruji Infrastructure Private Limited   )
         33, Suraj Plaza, Chandulwadi            )
         Opp. Dena Bank, Bhayander (W)           )
         Thane - 401 101                         )

4.       Ajit Swayam Rozgar Seva Sahakari)
         Sanstha Maryadit                        )
         Opp. Podar School,                      )
         Kakde Park Chowk                        )
         Chinchwad, Pune - 411 033               ) ...Respondents
                                .......

1
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Mr. Shriram Kulkarni i/b. Mr. Pranjal Khatavkar for the Petitioner.
Mrs. R.M. Shinde, AGP for the Respondent -State.
Mr. G.H. Keluskar for Respondent No.2.
Mr. Ashok Dhanuka a/w. Mr.Ashish Jain and Ms. Vidhi Karia for
Respondent Nos. 3 and 4.
                               .......
                 CORAM : A.A.SAYED & S.G.DIGE, JJ.

RESERVED ON : 18th AUGUST, 2021.

PRONOUNCED ON : 13th SEPTEMBER,2021.

JUDGMENT : (PER : S.G.DIGE, J.)

1. The Petitioner, a sole proprietorship firm, is essentially

objecting to rejection of its tender at technical bid level and

allotment of tenders to the Respondent No. 3 -Guruji

Infrastructure Private Limited and Respondent No. 4- Ajit Swayam

Rozgar Seva Sahakari Sanstha Maryadit by Respondent No.2 as

successful bidders.

2. The present Petition relates to the Tender floated by

Respondent No.2- Pimpri Chinchwad Municipal Corporation (for

short, "Respondent No.2") in August, 2019 for maintenance and

protection of the gardens (for short, "the said Tender") situated

within the jurisdiction of the Respondent No.2.

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3. Accordingly, the Petitioner submitted its technical bid

as well as financial bid along with all requisite documents for

garden works of Serial Nos. 10 to 14 of said Tender. Out of these

works, the Petitioner is objecting to allotment of work of two

gardens to Respondent Nos. 3 and 4. The Petitioner is also

challenging the validity of tender condition No. 3 of said Tender.

During pendency of this Petition, the Petitioner has amended the

Petition and sought some additional reliefs.

4. The scope of judicial review in the tender matters have

been considered by the Hon'ble Apex Court in the matter of Tata

Cellular v. Union of India1. It is held that judicial review of

Government contracts was permissible in order to prevent

arbitrariness or favoritism. In paragraph Nos. 77 and 94 of the

said judgment, the Apex Court has observed as under ;

"77. The duty of the court is to confine itself to the question of legality. Its concern should be :

1    (1994) 6 SCC 651


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1. Whether a decision-making authority exceeded its powers?

2. Committed an error of law,

3. committed a breach of the rules of natural justice,

4. reached a decision which no reasonable tribunal would have reached or,

5. abused its powers.

Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:

(i) Illegality : This means the decision- maker must understand correctly the law that regulates his decision-making power and must give effect to it.

(ii)Irrationality, namely, Wednesbury unreasonableness.

(iii) Procedural impropriety.

The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R.V. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of

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proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention".

"94. The principles deducible from the above are (1) The modem trend points to judicial restraint in administrative action.

(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.

(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.

(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.

(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of

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reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.

(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure".

5. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn.

Ltd.2, it was held that a mere disagreement with the decision making

process or the decision of the administrative authority is no reason for

a constitutional Court to interfere. The threshold of mala fides,

intention to favour someone or arbitrariness, irrationality or perversity

must be met before the constitutional Court interferes with the decision

making process or the decision. The owner or the employer of a

project, having authored the tender documents, is the best person to

understand and appreciate its requirements and interpret its

documents. It is possible that the owner or employer of a project may

give an interpretation to the tender documents that is not acceptable to

the constitutional Courts but that by itself is not a reason for interfering

with the interpretation given.

2    (2016) 16 SCC 818,


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6. In ACC India Private Limited & Ors. V/s. State of

Maharashtra & Ors.3, the Division Bench of this Court has held that the

Court must be satisfied that there is some public interest involved in

entertaining such Petition and if the dispute is purely between the two

tenderers, the Court must be very careful to see if there is an element

of public interest involved in the litigation.

7. The principles emanating from the above judgments are

that the Courts shall not ordinarily test the opinion of the experts

unless their decision is totally arbitrary or unreasonable. The Courts

will only interfere to prevent arbitrariness, irrationality, bias, mala fides

or perversity. Considering these principles, we proceed to examine

matter at hand.

8. In the said tender, one of the condition was with

respect to the submission of the experience certificate from any

Government, Semi-Government authorities, having experience in

the work relating to garden, road dividers, tree plantation and

conservation. The contractor should have completed at least one

3WRIT PETITION (L) NO. 2321 OF 2018 DATED 30 JULY 2018

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work in last five years having 30% of the Tender value.

Accordingly, the Petitioner while submitting the bid, also

submitted all documents including the experience certificate

issued by the Maharashtra Agro Industries Development

Corporation Limited (for short, " the MAIDCL"). According to the

Petitioner, the Respondent No.2 again demanded the experience

certificate, although one experience certificate was already

submitted by the Petitioner. In order to comply with the

requisition, the Petitioner again submitted the experience

certificate dated 8th November, 2019 issued by the MAIDCL that

the Petitioner has successfully completed the work with respect to

the garden maintenance etc., of amount of Rs. 2,95,29,911/-

(Rupees Two Crores Ninety Five Lakhs Twenty Nine Thousand

Nine Hundred and Eleven only).

9. The Respondent No.2 thereafter addressed a letter

dated 22nd November, 2019 to the MAIDCL to confirm the

issuance of certificate by them. As per the request of the

Respondent No.2, MAIDCL confirmed about issuance of certificate

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to the Petitioner vide its letter dated 16 th December, 2019. The

Respondent No.2 again sent letter dated 17 th December 2019 to

MAIDCL and requested to send work order and photocopy of the

bills within two days. It is stated that although the MAIDCL had

confirmed the work done by the Petitioner vide its certificates

dated 8th November, 2019 and 16th December, 2019 the

Respondent No.2 again asked the information about work,

however, the MAIDCL refused to give the work order and bills

being their internal documents.

10. It is contended that inspite of submitting the

experience certificate as contemplated in the terms and conditions

of the said Tender to Respondent No.2, the Petitioner was not held

eligible to participate in financial bid of Tender. The list of eligible

and ineligible bidders was published on 28th January, 2020. By

the letter dated 29th January, 2020, the Petitioner brought to the

notice of the Municipal Commissioner of Respondent No.2 the

alleged malafide action of the Respondent No.2 in the allotment of

work under the said Tender. However, neither any action is taken

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by the Municipal Commissioner nor the letter was replied.

11. It is further contended that the entire procedure of

allotting the aforesaid Tender was bogus and carried out only in

order to support the few bidders i.e. Respondent Nos. 3 and 4.

There were complaints against these bidders. As per the Tender

condition, the bidder should have experience of completion of

atleast one work having 30% of the said Tender value in last five

years. The Respondent No.4 has submitted the certificate for the

duration of the year 2012 to 2018. As per condition No. 2 (a), the

bidder must have in last 5 years turnover of 75% of the Tender

value. The documents in order to satisfy the aforesaid condition

submitted by the Respondent No.4 shows that the same is not

75% of the Tender value. As far as the Respondent No.3 is

concerned, to satisfy the condition No.2, it has submitted the work

order issued by Mira-Bhayandar Municipal Corporation (for short,

"Mira-Bhayander Corporation') which shows that the work

undertaken was not a single work but it was done in different

wards of Mira-Bhayander Corporation.

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12. It is further contended that the condition No. 12.3 of

the said Tender states that the bidder will have to submit the

performance guarantee in terms of the said condition. Both the

above bidders have failed to submit the same. However, the

Respondent No.2, inspite of the aforesaid lacuna, held the

Respondent Nos. 3 and 4 as eligible. Respondent No.2 opened the

technical bid on 28th January, 2020 without giving any

opportunity to cure such discrepancies/ doubts to the bidders in

whose documents there was discrepancy/ doubt. Respondent No.2

opened the financial bid on very same day within a period of two

hours. The aforesaid act of Respondent No.2 is contrary to the

Government Resolution dated 17th September, 2019 and CVC

Guidelines. The Respondent No.2 was under an obligation to open

the bids in front of the bidders, however, without calling any of

the bidder, the Respondent No.2 hurriedly opened the technical as

well as financial bid. It shows that the Respondent No.2 has not

followed the procedure laid down by law.

13. It is further contended that the condition No.3 of the

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said Tender restricts the successful bidder from getting more than

one work with respect to the work mentioned at serial Nos. 1 to 9

in the said Tender, though the said Tender list is of 14 gardens for

which the bids were invited. However, with respect to the gardens

mentioned at serial Nos.1 to 9, one bidder was entitled to get only

one work out of the work mentioned at serial Nos. 1 to 9. The said

restriction is not only unreasonable, arbitrary but also contrary to

the Government Resolution dated 17th September, 2019. The

aforesaid conduct of Respondent No.2 is brought to the notice of

the Municipal Commissioner but he has neither cancelled the

Tender nor granted stay on the further procedure of allotment of

the said Tender. The act of Respondent No. 2 is arbitrary,

unreasonable, restrictive and violative to the provisions of Article

14 of the Constitution of India and also violative to the provisions

of Article 19 (1) (g).

14. An Affidavit in Reply has been filed by the Respondent

No.2. In Affidavit in Reply, the Respondent No.2 has contended

that the technical bid was opened on 27 th September, 2019 and

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financial bid was opened on 28th January, 2020. After opening

technical bid, the Respondent No.2 scrutinized the documents of

the Petitioner and other bidders. Shortfall was found in the

documents of Respondent Nos. 3 and 4 as well as the Petitioner.

Accordingly, the Respondent No.2 had informed the concerned

bidders about the shortfall of documents and requested them to

comply with the same on or before 10 th November, 2019. In

response thereto, the Petitioner furnished experience certificate

dated 8th November, 2019. The Tender Committee examined the

said certificate dated 8th November, 2019 when they found that

there is a discrepancy in respect of amount in earlier certificates

dated 27th August, 2019 and 8th November, 2019. Therefore, by

letter dated 22nd November, 2019 forwarded both certificates for

verification to MAIDCL.

15. On 16th December, 2019, the MAIDCL submitted a

copy of the "opinion letter" on whatsapp of one of the members of

the Tender Committee. Plain reading of the said "Opinion letter"

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shows that the contract of the Petitioner is "not completed" but it

is "ongoing" which was not as per Condition No.2 of said contract.

16. It is further contended that the Tender was published

in August, 2019 and Petitioner's experience shown in the said

"Opinion letter" was from November, 2018 to October, 2019 which

was not as per Tender condition. The MAIDCL has not given reply

to the Respondent No.2's letter dated 17th December, 2019 in

respect of the experience certificate of the Petitioner hence

Petitioner was rightly held ineligible by the Tender Committee.

17. It is contended that Respondent No.4 submitted its

experience certificate and turnover for the period from 16th July,

2013 to 31st January, 2018. As per the certificate, the total period

of work is four years and 5.5 months and the yearly cost of the

work was Rs. 17,19,804/- (Rupees Seventeen Lakhs Nineteen

Thousand Eight Hundred Four only) which indicates monthly cost

of the work was Rs. 1,43,317/- (Rupees One Lakh Forty Three

Thousand Three Hundred Seventeen Only). Their experience was

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counted from August 2014 to January 2018, total 42 months. So

the total work done was Rs. 60,19,314/- (Rupees Sixty Lakhs

Nineteen Thousand Three Hundred Fourteen only) (1,43,317 * 42

months). As per Tender condition No.2, the work experience

required was 30% of Tender cost i.e. Rs. 49,41,863/- (Rupees

Forty Nine Lakhs Forty One Thousand Eight Hundred Sixty Three

only). The work done amount fulfills the Tender condition.

18. It is further contended that the total Tender cost of

work in said tender was Rs.1,64,72,878/- (Rupees One Crore Sixty

Four Lakhs Seventy Two Thousand Eight Hundred Seventy Eight

only). The period for the said Tender was for two years, hence the

yearly cost was Rs. 82,36,439/-. As per Tender

condition No.2, the yearly turnover of the bidder must be 75% of

Tender cost. The turnover certificate of the Respondent No.4 was

duly signed by the Chartered Accountant. The amount fulfills the

Tender condition. As per the experience certificate submitted by

Respondent No.3, the work done in 2016-2017 was Rs. 3.12

Crores and in 2017-2018 it was Rs. 8.88 Crores. The amount

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mentioned in certificate fulfills the Tender condition. As per

Tender condition No. 12, after opening an envelope No.2

(Financial Bid), the successful bidder must submit additional

performance security deposit in eight days to the Respondent

No.2. There was controversy in respect of tender condition Nos.

12 and 13 hence the Tender Committee decided to go with Tender

condition No. 12. For further Tender, this condition will be

included with proper correction with the consent of concerned

authority.

19. It is contended that the Respondent No.3 submitted

certificate for work undertaken by them with Mira Bhayandar

Corporation. This Respondent had enquired with Mira Bhayandar

Corporation about issuance of certificate, by letter dated 3 rd

December, 2019, the concerned authority informed Respondent

No.2 that the letter submitted by the Respondent No.3 is correct

and the same was issued by them.

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20. It is further contended that the Government Resolution

dated 27th September, 2019 would not be applicable to present

case because said Tender was published on 5 th August, 2019. Due

to administrative reasons, the Respondent No.2 cancelled works

mentioned at Serial Nos. 1 to 9 of the said Tender.

21. In Affidavit in Reply, Respondent No.4 contended that

the Petitioner failed to qualify in the technical bid on the ground

of false certificate. Therefore, the Petitioner cannot seek any kind

of equitable reliefs. The Respondent Nos. 3 and 4 are held

qualified after complying all the formalities of bid and after

competing with various other eligible bidders.

22. It is contended that the Petitioner has suppressed

various facts from this Court including that the Tender process for

Garden Nos. 1 to 9 was cancelled by the Respondent No.2 and the

condition No.3 was only applicable to garden Nos. 1 to 9.

Therefore, the Petitioner has made an attempt to mislead this

Court.

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23. It is further contended that as per Tender Conditions,

the Respondent No.4 submitted required certificates to

Respondent No.2, after opening of the technical and financial bids

and after competing with the other eligible bidders, the bid of

Respondent No.4 was declared as lowest quoted bid at the less

quoted percentage of -23.77% at Rs. 1,25,57,274.90 (Rupees One

Crore Twenty Five Lakhs Fifty Seven Thousand Two Hundred

Seventy Four and Ninety paise only) as compared to the other

bidders whose bids were at a higher price.

24. We have heard learned Counsel for the respective

parties.

25. Considering the facts and circumstances of the case,

two fold questions arise for our consideration :

(i) Whether the Petitioner had the requisite

experience certificate and that the allotment of bids to

Respondent Nos. 3 and 4 are not proper?

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(ii) Whether Petitioner has suppressed material facts?

26. So far as first question is concerned, we have

considered the documentary material on record as well as

submissions of learned Counsels. According to Petitioner, its bid is

rejected at technical bid level without giving an opportunity to

submit a requisite experience certificate as per condition No.2 of

the said tender and though the certificates provided by Petitioner

are proper, they were not considered. Whereas Respondents state

that the Petitioner was not possessing requisite certificate as per

tender condition No. 2 hence Petitioner was not qualified for

financial bid. There were discrepancies in the experience

certificates submitted by Petitioner.

27. It would be appropriate, at this stage, to refer

condition No. 2 of the said Tender and qualification criteria

provided for it which reads as under :

"2) For the present work it is necessary to have experience of completing minimum one work of

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30% amount of the Tender amount during last five years. It is necessary that during the said work contractor/ firm should have completed maintenance and protection works about gardens/ road divider/ tree plantation and tree conservation of Government Semi Government organization/ Civil Local bodies (excluding Grampanchayat and School). The independent works about the gardens/ road divider / tree cultivation and tree conservation protection and maintenance and renovation shall be considered valid.

A) The annual turnover during the last five years is required to be 75% of annual expenditure of the tender. It is necessary to submit certificate of Chartered Accountant.

B) It shall be compulsory for contractor/ firm to submit the certificate of Department head stating that the work giving complete details of work and expenditure of Government/ Semi Government/ Civil Local is completed satisfactorily.

C) It is necessary for the contractor/ firm to submit bid capacity certificate for tender filing of Chartered Accountant. The formula about the same is as

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follows :

(A x N x 2) -B Where A= maximum turnover of last five years. N= Period of work awarded B= The cost of work in hand (during the work awarded)".

28. Perusal of condition No.2 of the said Tender shows

that the requirement is two-fold;

(1) Work Experience and

(2) Financial Capacity.

29. Thus, two certificates were required to be submitted to

the Respondent No.2, viz.

(1) Experience Certificate inter-alia to show

experience of at least one work of the amount equal

to amount of 30% of the present tender amount

being completed in the last five years.

(2) Turnover Certificate to show the financial

capacity of the bidder inter-alia by showing that the

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annual turnover during the last five years shall be

75% of the annual tender cost of the tender.

30. Our attention was invited to the experience certificates

dated 27th August, 2019, 8th November, 2019 and 16th December,

2019 submitted by the Petitioner.

31. The experience certificate dated 27th August, 2019

shows that during period November, 2018 to July 2019 the

Petitioner had been supplying manpower and carrying out the

gardening work and house keeping work in the Head Office,

Mumbai of MAIDCL and in its 13 regional offices and nine

factories and amount of Rs. 3,85,18,634/- (Rupees Three Crores

Eighty Five Lakhs Eighteen Thousand Six Hundred Thirty Four

only) has been paid to Petitioner.

32. The experience certificate dated 8th November, 2019

shows that during the period November, 2018 to October, 2019,

the Petitioner had completed the gardening work in the Head

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Office, Mumbai of MAIDCL and the amount of Rs. 2,95,29,911/-

(Rupees Two Crores Ninety Five Lakhs Twenty Nine Thousand

Nine Hundred Eleven only) has been paid to the Petitioner.

33. In response to letter dated 22nd November, 2019 sent

by Respondent No.2, MAIDCL sent "opinion letter" dated 16 th

December, 2019 and the said "opinion letter" shows that during

period November, 2018 to October 2019, the Petitioner's agency

has been supplying man power in the Head Office of MAIDCL and

in its 13 regional offices and nine factories and it included data

entry operator, assistant, assistant manager, peon, helper, driver

and Gardner, totaling 313 officers/ employees working on a

contract basis. It appears to us, on perusal of certificates dated 27th

August, 2019 and 8th November, 2019, that the work period of

certificate dated 27th August, 2019 shows November, 2018 to July

2019 and the work period of 8th November, 2019 certificate shows

November, 2018 to October 2019. It shows major discrepancy in

work period. The certificate dated 8th November, 2019 is not as

per Tender condition No.2 as Tender was published in August,

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2019 whereas work period shows October, 2019, which is after

the tender period. Certificate dated 27th August, 2019 shows work

period from November, 2018 to July 2019, but the period was not

of a complete one year. Whereas "opinion letter" dated 16 th

December, 2019 shows work period November 2018 to October

2019, which is 'after' Tender period as well as this letter shows

that work is 'ongoing'. As per tender condition No.2, work should

be completed work.

34. There are discrepancies in the amount mentioned in

these certificates. Certificate dated 27th August, 2019 shows work

amount more than Rs. 3 Crores whereas 8 th November, 2019

certificate shows work amount more than Rs. 2 Crores. We do not

find merit in contention of learned Counsel for the Petitioner that

in certificate dated 27th August, 2019 the amount was in respect of

house keeping and gardening work, whereas in certificate dated

8th November, 2019 the amount was given in respect of only

gardening work. There is no mention of any amount in the

"opinion letter" dated 16th December, 2019 given by MAIDCL. Had

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these amounts been given for different works, it would have been

mentioned in these certificates by mentioning separate works. So

it was not possible for Respondent No.2 to calculate 30% amount

of tender amount as there were different amounts mentioned in

two certificates whereas in "opinion letter" dated 16 th December

2019 no amount is mentioned. We are therefore of the view that

certificates submitted by Petitioner were not proper and were not

as per tender condition No.2 of said Tender. Hence, Petitioner was

rightly held ineligible for financial bid. The Government

Resolution dated 17th September, 2019 would not be applicable

retrospectively as tender was published in August, 2019.

35. In respect of the acceptance of bids of Respondent Nos.

3 and 4, we find that Respondent Nos. 3 and 4 are held eligible

after due scrutiny of documents and following proper procedure

by Evaluation Committee. As per Evaluation Committee Report,

the experience certificate and financial capacity certificates of

Respondent Nos. 3 and 4 are as per tender condition No.2. There

were other bidders who competed with Respondent Nos. 3 and 4.

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Evaluation Committee was consisting of experts persons. When

such experts evaluates documents of participant bidders, the

Courts would be slow in interfering with the said decision unless it

is arbitrary or some favourism is pointed out. The view adopted

by experts should be given weightage. As has been held by the

Division Bench of this Court in the matter of Reliance Energy Ltd.

V/s. MSRDC Ltd. And Ors. 4 that, "....Suffice it to note that even on

interpretation of terms, there are divergent views. The treatment

to the Items is different at the hands of the officials and outside

Experts. Once the divergent views have been noted by the

Tendering Authority and it took the final decision after due

consideration of the same, we cannot substitute their views with

ours and thereafter alter their ultimate decision. That is not

permissible and would be beyond the parameters of judicial

review." The Respondent Nos.3 and 4 are held eligible after

proper scrutiny of documents by Evaluation Committee. The said

decision cannot be said to be manifestly incorrect or arbitrary or

malafide. In the circumstances, reconsideration of the decision of

4 (2007) 5 Mah. LJ 768

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the Respondent Authority would tantamount to exercise the

Appellate powers by this Court and it may not be permissible. Hence,

we are of the view that the acceptance of bids of Respondent Nos. 3

and 4 are proper.

36. We may add that Petitioner had participated in tender

process of five garden works i.e. Sr. Nos. 10 to 14 of said tender but

Petitioner has challenged only tender process of two gardens, which

are allotted to Respondent Nos. 3 and 4. The Petitioner is held

ineligible in all five tender process on same ground i.e. not

possessing required experience certificate. As Petitioner is not

challenging other three tender processes, it indicates that Petitioner

is accepting that the Petitioner was not eligible for financial bids in

other three gardens tender process. When Petitioner claims right of

equity, Petitioner should have prayed to allow them in participation

of financial bids in all five tender process because in other three

tender process, the Petitioner is held ineligible on same ground.

Petitioner cannot differentiate challenge of tender process as per

their wish.

37. We do not find merit in contention of Petitioner that the

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entire tender process was bogus and procedure of bidding was

carried in order to support to Respondent Nos. 3 and 4. There

were other bidders who had participated in financial bids along

with Respondent Nos. 3 and 4. After competing with all bidders,

Respondent Nos. 3 and 4 emerged as the successful bidders.

38. Now we examine second question, regarding

suppression of material facts by Petitioner. Considering the

material on record and submissions of learned Counsel, we deal

with it issue wise.

39. (1) Opportunity

According to Petitioner, technical bid was opened on

28th January, 2020 and after gap of two hours, financial bid was

opened on same day. No opportunity was given to Petitioner to

submit requisite experience certificate.

40. It appears to us from the record that the technical bid

was opened on 27th September, 2019 and opportunity was given

to the Petitioner and other bidders by Respondent No.2 to submit

the experience certificate as per Tender condition No.2.

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Accordingly, Petitioner submitted certificate dated 8 th November,

2019, when shortfall was found in it, Respondent No.2 wrote

letter to MAIDCL dated 22nd November, 2019 in response to which

MAIDCL sent "Opinion letter" dated 16th December, 2019 and

another letter dated 17th December, 2019 was sent by Respondent

No.2 seeking more information. This letter shows that copy of it

was marked to Petitioner. The letters dated 27 th August, 2019, 8th

November, 2019 and 16th December, 2019 show that those were

given as per request of Petitioner. We thus find that after opening

technical bid on 27th September, 2019 opportunity was given to

Petitioner, however, the Petitioner has falsely stated that technical

bid was opened on 28th January, 2019. Petitioner has referred

submission of letters dated 8th November, 2019 and 16th December,

2019 in their Petition but not disclosed that an opportunity was

being given to them to cure the deficiency. We find that Petitioner

has suppressed these facts. Moreover, Petitioner states that

MAIDCL refused to give work order and bills being their internal

documents in response to letter dated 17 th December, 2019 of

Respondent No.2 but according to Respondent No.2, there is no

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reply to said letter. Petitioner has not produced reply of MAIDCL

on record. It indicates that Petitioner has falsely stated that there

was a reply given by MAIDCL in response to letter dated 17 th

December, 2019.

41. (2)Validity

Petitioner has challenged the validity of condition No.

3 of said Tender. Petitioner states that this condition restricts the

successful bidder from getting more than one work with respect to

work Nos. 1 to 9 of said tender. After examining the material on

record, we find that condition No.3 was applicable to tender Nos.

1 to 9 and those tenders were cancelled by Respondent No.2 in its

meeting dated 20th August, 2019. Thereafter, Petitioner submitted

tender for tender work Nos. 10 to 14. It indicates that Petitioner

was aware about cancellation of tender Nos. 1 to 9. The Petitioner

has suppressed this fact. Even otherwise, it is well settled law that

a bidder who has participated in a tender cannot turn around and

challenge the terms and conditions of the tender and Tender

conditions are immune from judicial review.

Trupti wp-2076-2021.doc

42. (3) Condition No.2 of New tender.

Petitioner has filed Additional Affidavit in which

Petitioner has raised issue of acceptance of tender of some bidders

in a new tender process. According to Petitioner, Respondent

No.2 has published new tender in the year 2020 mentioning

condition No.2 similar to earlier tender of 2019 which is subject

matter of this Petition. As per this condition, the work should have

been completed, but in new tender, Respondent No.2 has accepted

tender of some bidders whose works are on going, whereas

Petitioner's tenders were rejected on same ground in tender of

2019 which demonstrates malafides on part of Respondent No.2.

The Petitioner has submitted the documents to show that in new

tender process of 2020, the tender of bidders have been accepted

whose works are ongoing.

43. It appears to us from record that Respondent No.2 vide

Corrigendum No.1 dated 2nd January, 2020 modified tender

Condition No. 2 of new tender to the extent of including even the

"ongoing work". It indicates that by said Corrigendum,

Respondent No.2 had permitted the bidders to participate in

Trupti wp-2076-2021.doc

tender process whose work was ongoing. Petitioner has submitted

the documents of the successful bidder along with their additional

Affidavit. It indicates that the Petitioner was aware of this fact but

Petitioner has suppressed this fact from this Court. We may add

that each tender is an independent contract in itself. If the

Respondent No.2 has chosen to lay down terms and conditions of

each tender with intent to achieve their objectives, then it is not

open for the Petitioner to pick and choose terms and conditions

from another tender to suit their convenience. We are therefore of

the view that Petitioner has suppressed above material facts from

this Court.

44. It is well settled that in exercising extraordinary

jurisdiction, a writ court must bear in mind the conduct of the

party who is invoking such jurisdiction and if the Petitioner does

not disclose full facts or suppresses relevant materials or is

otherwise guilty of misleading the court, the court may dismiss

the action without adjudicating the matter. The Hon'ble Apex

Court in the matter of the Silppi Constructions Contractors Versus

Trupti wp-2076-2021.doc

Union of India and Another 5 has held that, "attempts by

unsuccessful tenderers with imaginary grievances, wounded pride

and business rivalry, to make mountains out of molehills of some

technical/ procedural violation or some prejudice to self, and

persuade courts to interfere by exercising power of judicial review,

should be resisted. Such interference, either interim or final, may

hold up public works for years, or delay relief and succour to

thousands and millions and may increase the project cost

manifold".

45. Needless to state that in present case the Petitioner

has approached this Court to invoke writ jurisdiction under Article

226 of Constitution of India. Petitioner claims justice and equity,

but while claiming so the Petitioner has suppressed material facts

and has not come with clean hands. The person who claims

justice and equity must come with clean hands. We are of the view

that, the Petitioner was rightly held ineligible by Respondent No.2.

Tender of Respondent Nos. 3 and 4 were accepted after scrutiny of

5 (2020) 16 SCC 489

Trupti wp-2076-2021.doc

documents and by adopting proper procedure.

46. For the reasons recorded above, the Petition is devoid

of merit and is accordingly dismissed. No order as to cost.

47. On the request of learned Counsel for the Petitioner, we

direct that the ad-interim order of status quo shall continue to

operate for a period of four weeks from the date this order is

uploaded.

             (S.G.DIGE,J.)                          (A.A.SAYED, J.)




                 Digitally signed
                 by TRUPTI
TRUPTI           SADANAND
SADANAND         BAMNE
BAMNE            Date:
                 2021.09.24
                 23:40:37 +0530