Siddhi Vinayak Transport Co., ... vs Western Coal Fields Ltd., Nagpur ...
2022 Latest Caselaw 13377 Bom

                                                   1                                  wp2745.22.doc


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH AT NAGPUR
                       WRIT PETITION NO.2745/2022

               Siddhi Vinayak Transport
               Corporation, through it's Partners
1.             Shri Satyanarayan S/o Ghasilal Gupta,
               Aged about 63 years, Occ.:Business

2.             Shri Niket S/o Damodharlal Gupta,
               Aged 48 years, Occ : Business,

3.             Satish S/o Ghasilal Gupta,
               Aged 59 years, Occ.: Business,
4.             Ashish S/o Balkisan Gupta,
               Aged 41 years, Occ.: Business

               All partners are represented through
               Shri Satish S/o Ghasilal Gupta

               Address :-85, Ram Nagar, Hill Road,
               Nagpur, Tq. & Dist. Nagpur - 440010 ...PETITIONERS

                              ...V E R S U S...

1.             Western Coal Fields Ltd.,
               Through General Manager (CMC),
               Coal Estate, Civil Lines, Nagpur - 440001
               e-mail : gmcontracts @westerncoal.gov.in
2.             M/s B. Ganga Transport, having its
               Office at Shetkari Mandir Road,
               ear Govt. Hospital Road, Wani,
               District Yavatmal                                  ...RESPONDENTS
--------------------------------------------------------------------------------------------
Mrs. P.V. Ganediwala with Mr. P.R. Jaiswal, Advocates for
petitioners.
Mr. S. P. Dharmadhikari, Senior Advocate assisted by Mr. Atul
Pande, Advocate for respondent no.1.
Mr. M. G. Bhangde, Senior Advocate assisted by Mr. Dhruv
Sharma, Advocate for respondent no.2.
-------------------------------------------------------------------------------------------
                                       2                          wp2745.22.doc


CORAM:- A. S. CHANDURKAR & ANIL L. PANSARE, JJ.
DATE OF RESERVING THE JUDGMENT  :- 24.11.2022
DATE OF PRONOUNCING THE JUDGMENT:- 21.12.2022

J U D G M E N T (Per: Anil L. Pansare, J.)

Rule. Rule is made returnable forthwith. Heard finally

by consent of learned counsel for the parties.

2. Respondent Western Coalfields Limited (WCL), on

17.12.2021 floated an e-tender, inviting bids for the work of

loading and transportation of coal at Ghonsa OCM of Wani North

area. In all 16 bidders submitted their bids. The petitioner firm

was one of the bidders. On 13.05.2022, the WCL published tender

summary report. The technical bids of eight bidders were rejected

on the ground of non fulfillment of the terms and conditions of the

NIT. The petitioner was one of them. Aggrieved by rejection of

the technical bid, the petitioner is before us, challenging rejection

of its technical bid.

3. The question revolves around the eligibility criteria.

Clause 6 of the NIT provides for eligibility criteria, which reads

thus:

6. Eligibility Criteria a. Work Experience:

The bidder must have experience of works 3 wp2745.22.doc

(includes completed/ongoing) of similar nature (such as Transportation/Removal of Coal/Overburden/ Shale/ Extraneous materials/Sand/etc.) valuing 50% of the annualized estimated value of the work put to tender (for period of completion over 1 year/50% of the estimated value of the work (for completion period up to one year) put to Tender in any (consecutive 365 days) during last 7 (Seven) years ending last day of month previous to the one in which bid applications are invited."

4. Clause 7 of the NIT deals with the documents to be

uploaded by the bidder. The relevant portion of clause 7 is as

under:

7. Scanned copy of documents to be uploaded by bidders (CONFIRMATORY DOCUMENT):

FOR SERVICE TENDERS (Coal Loading and Transportation):

...Scanned copy of documents, to be uploaded in support of information/declaration furnished online by the bidder against Eligibility Criteria as Confirmatory Document.

For work experience bidders are required to submit Work Experience Certificate issued by the employer against the experience of similar work containing all the information as sought on-line.

Work order, BOQ and, TDS etc. may be sought during clarification or along with deficient documents."

4 wp2745.22.doc

5. Our attention has been drawn to the other conditions of

the NIT as well, which provide that the bids will be in two parts.

Part-I/Cover-I and the OID would include, amongst other, the

information of the eligibility/qualifying criteria as stipulated in

clause nos. 6 and 7 including necessary scanned documents as

elaborated therein. The clauses further provide that all the

confirmatory documents as enlisted in the NIT furnished by the

bidder are to be uploaded in cover-I and OID.

6. Learned counsel for the parties have relied on the

following clauses of the NIT; as well:

"12. Technical Evaluation of Tender: A. After opening of Technical bid, the documents submitted by bidder(s) in cover I as enlisted in the NIT will be downloaded by the Evaluator and shall be put up to the Tender Committee. The Tender Committee will examine the uploaded documents against information/declaration furnished by the bidder(s) online. If it confirms to all of the information/ declarations furnished by the bidder online and does not change the eligibility status of the bidder then the bidder will be considered eligible for award of Contract.

B. In case the Tender Committee finds that there is some deficiency in uploaded documents corresponding to the information furnished online or in case 5 wp2745.22.doc

corresponding document have not been uploaded by bidder(s) then the same will be specified online by Evaluator clearly indicating the omissions/ shortcomings in the uploaded documents and indicating start date and end date allowing 7 days (7 x 24 hours) time for online re-submission by bidder(s). The bidder(s) will get this information on their personalized dashboard under "Upload confirmatory document" link. Additionally, information shall also be sent by system generated email and SMS, but it will be the bidder's responsibility to check the updated status/ information on their personalized dash board regularly after opening of bid. No separate communication will be required in this regard. Non-receipt of e-mail and SMS will not be accepted as a reason of non-

submission of documents within prescribed time. The bidder(s) will upload the scanned copy of all those specified documents in support of the information/ declarations furnished by them online within the specified period of 7 days. No further clarification shall be sought from Bidder.

C.    .....
D.    .....
E.    In case      of     bidder(s)         submit(s)     requisite

documents online as per NIT, then the bidder(s) will be considered eligible for opening of Price Bid. F. Seeking clarification shall be restricted to confirmation of submitted document/online information only and it should be only for one time for 6 wp2745.22.doc

a period of up to 7 days. The clarification shall be taken in online mode in the e-Procurement portal of CIL only.

G. In case bidder(s) fails to confirm the online submitted information(s)/declaration(s) by the submitted documents as (B) above, their/his bid shall be rejected; however, if the conformity documents do not change eligibility status of the bidder in connection his submitted online information(s)/declaration(s), then his/their bid will be accepted for opening of Price Bid.

H. After Technical evaluation of tender, "Technical Evaluation Summary" will be uploaded by the evaluator and price bid shall be opened on preschedule date and time mentioned in the NIT online in the e-procurement portal of CIL. However, in case there is any extension of date and time of price bid opening, it shall be notified online and price bid shall be opened online on e-Procurement portal of CIL at rescheduled date and time.

I.     .....
J.     .....
K.     .....
L.     ....."

"INSTRUCTIONS TO BIDDERS:

22. Examination of Bids and Determination of Responsiveness.

22.1 A substantially responsive Bid is one which 7 wp2745.22.doc

conforms to all the terms, conditions and specifications of Bidding documents without material deviation or reservation. A material deviation or reservation is one: a. which affects in any substantial way the scope, quality, or performance of the works;

b. which limits in any substantial way, inconsistent with the Bidding documents, the Employer's rights or Bidder's obligations under the Contract; or c. whose rectification would affect unfairly the competitive position of other Bidders presenting substantially responsive Bids.

22.2 If a Bid is not substantially responsive, it may be rejected by the Employer as its sole discretion.

23. .....

24. Award Criteria 24.1 Subject to Clause 23, the Employer will award the Contract to the Bidder whose Bid has been determined to be substantially responsive to the Bidding documents and who has offered the lowest evaluated acceptable Bid Price, provided that such Bidder has been determined to be :

a) eligible in accordance with the provisions of NIT; and

b) qualified in accordance with the provisions of NIT."

7. Mrs. Ganediwala, learned counsel for the petitioner,

submits that the estimated cost of the work is about Rs.20.90

Crores and the stipulated time for completion of the work is 1155 8 wp2745.22.doc

days i.e. 38 months. The annualized value in terms of clauses 6(a)

of the NIT is to be calculated by applying the following formula:

Annualized value = Estimated value/Period of X 365 completion in days

8. By applying the aforesaid formula, the annualized value

comes to Rs.6.63 Crores (approximately). The work experience as

sought under clause 6(a) is 50% of the annualized estimated value

which comes to Rs.3.38 Crores (approximately). Thus, the

required work experience was of the value of about Rs.3.38

Crores. As against the petitioner has submitted documents to

show that it has work experience of about Rs. 9.62 Crores. The

petitioner submitted the certificate to that effect issued by the

MAHAGENCO (Maharashtra State Power Generation Company

Ltd.), a Government undertaking. The petitioner also submitted

the document showing payment of bills issued in favour of the

petitioners by MAHAGENCO for the period from 04.11.2017

onwards. The only issue was that while making payment the

MAHAGENCO did not deduct the tax at source and therefore did

not issue the Tax Deducted at Source (TDS) certificate. The

respondent WCL has rejected the technical bid on the ground that

the TDS certificate has not been submitted by the petitioner

though sought for.

9 wp2745.22.doc

9. Mrs. Ganediwala has strenuously argued, by referring

to various clauses of the NIT that the submission of TDS was not a

mandatory document/condition and having complied with all

other criteria, petitioner's technical bid ought to have been

accepted. She has emphasized on the wordings of the conditions/

clauses in NIT on the point of the TDS certificate. The NIT

provides, under the head of confirmatory document in clause, that

the work order, the BOQ and TDS, etc. "may be" sought during the

clarification or along with deficient documents for assessment/

valuation of work experience certificate submitted by the bidder.

The use of word 'may' in the clause is inidicative of the fact that

the condition was not mandatory.

10. She further submits that what was mandatory, was the

work experience certificate and same having been submitted, the

petitioner's bid would become substantially responsive in terms of

clause 22.1 of the NIT.

11. Mrs. Ganediwala further submits that the petitioner has

also submitted income tax returns in respect of the financial

capabilities required under the work experience certificate. The

only document that was missing was the TDS certificate, which

according to Mrs.Ganediwala, has not been issued by the 10 wp2745.22.doc

MAHAGENCO as the tax was not deducted at source. In that

sense, she submits that the lapse, if any, was on the part of the

MAHAGENCO. The petitioner could not be blamed for non

submission of the TDS certificate, particularly when in response to

the communication dated 26.03.2022, issued by the WCL seeking

from the petitioner the TDS certificate for financial year 2017-

2018, the petitioner had on 28.03.2022 stated that the

MAHAGENCO did not deduct the tax at source on the payment

made to it and that therefore the same could not be furnished. In

the same letter, the petitioner has also submitted copies of the

details of monthly summary regarding payments made to it by the

MAHAGENCO and the copies of income tax returns and the

computation of income of the petitioner firm for the financial year

2017-18, showing fulfillment of the annual value of work

experience.

12. It is thus argued that there was sufficient compliance on

the point of financial capabilities of the petitioner. As per clause 7

of the NIT, what was required was the work experience certificate.

The same having been furnished, supported by other documents,

showing that the condition was fulfilled, the bid ought to have

been considered eligible for price bid opening.The WCL, in support

of the work experience certficate could have sought any document 11 wp2745.22.doc

viz. the work order, the BOQ and TDS, etc. as stipulated in clause

7, meaning thereby that the TDS was not the only document by

which the financial capabilities of the bidder could be decided.

The petitioner having furnished income tax returns, payment of

bills, etc. has therefore fulfilled the eligibility criteria and therefore

ought to have been considered the eligible for opening of price bid.

13. Mrs. Ganediwala has then drawn our attention to the

pleadings contending that similar such tender was floated by the

WCL on 06.12.2021, similar were the clauses under the NIT,

similar work experience was sought, similar documents were

furnished by the petitioners, in support of work experience. The

WCL had accepted the documents and considered the petitioner as

eligible for opening of the price bid. She then contends that the

WCL has accepted such status when in reply the WCL pleads that

even if it is presumed that the claim of the petitioner in respect of

the earlier tender is correct, it was an error on the part of the

tender committee in qualifying the petitioner for opening the

financial bid.

14. Mrs. Ganediwala, has then drawn our attention to the

constitution of the tender committee which consists of Ex Officio

Members, General Manager (Finance) WCL, General Manager 12 wp2745.22.doc

(CMC), WCL, General Manager (Production), WCL and Area

General Manager of the concerned area. The committee is

presided over by the Director of the WCL. It is accordingly argued

that the tender committee is same in both the cases. Hence,

according to her, once the tender committee, in similar set of facts,

accepted the tender bid of the petitioner, the petitioner had no

reason to take additional efforts to submit any other document and

was under the impression that its bid will be considered as eligible.

Mrs. Ganediwala further submits that the petitioner has quoted its

bid at the rate of 44.75% below as against the rate of 40% below

submitted by the L-I. There is difference of Rs.1 Crore and non

acceptance of the petitioner's bid would ultimately burden the

public exchequer.

15. Mrs. Ganediwala has relied on the following judgments

in support of her contention that submission of the TDS certificate

was not an essential condition and that on the said ground the

WCL could not have rejected the technical bid of the petitioner.

(i) Khare and Tarkunde Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Ors.1

(ii) Poddar Steel Corporation Vs. Ganesh Engineering Works and Ors.2

1 2015 (3) Mh.L.J. 668 2 (1991) 3 SCC 273 13 wp2745.22.doc

(iii) Joshi Freight Carriers Vs. Central Ware Housing Corporation.1

(iv) Sagar Lookouts Vs. Maharashtra Housing and Area Development Authority and Ors.2

(v) R. K. Chavan Infrastructure Pvt. Ltd. Vs. State of Maharashtra, through its Secretary PWD and Ors.3

(vi) Reliance Energy Ltd. and anr. Vs. Maharashtra State Road Development Corporation Ltd. and Ors.4

(vii) Jai Bholenath Construction Vs. The Chief Executive Officer and Ors.5

16. In the case of Khare and Tarkunde Infrastructure Pvt.

Ltd. (supra), the bid was rejected on the ground of non submission

of copy of the registration of firm. The coordinate bench of this

Court, in view of the clauses in the NIT therein, held that the

submission of registration certificate was not an essential condition

but was collateral one.

17. In the case of Poddar Steel Corporation (supra),

requirement case was of depositing earnest money with the tender

either in cash or by demand draft drawn on the State Bank of

India. The highest bidder had submitted the banker's cheque

marked and certified by the Union Bank of India. The employer

1 2017 SCC OnLine Bom 423 2 2022 SCC OnLine Bom 1483 3 2010 SCC OnLine Bom 2263 4 (2007) 8 SCC 1 5 Law Finder Doc Id#2026486 14 wp2745.22.doc

Government (Indian Railways) after verifying the authenticity of

the cheque and after receiving the assurance from the bank to

honour the same, accepted the banker's cheque. The unsuccessful

bidder challenged the acceptance, which went up to the Apex

Court. The Apex Court held that the requirement in tender notice

can be classified in two categories. The first being essential

condition of eligibility and the second being ancillary or subsidiary

condition to the main object to be achieved by the condition. The

Apex Court held that the essential conditions are required to be

enforced rigidly while in other case it is open to the authority to

deviate from and not to insist upon the strict literal compliance of

the condition. In the said case, the apex Court held that the

tender committee took abundant precaution by verifying from the

concerned bank of the authenticity of the banker's cheque and that

therefore the committee had an authority to waive the technical

compliance of the tender condition especially when it was in the

interest not to reject the said bid which was the highest.

18. In the case of Joshi Freight Carriers (supra), the

coordinate bench of this Court while dealing with the experience

criteria, has held in paragraph nos. 15 and 24 thus:

"15. In the light of these arguments, we have perused the records and considered the controversy. Though 15 wp2745.22.doc

petitioner has been found disqualified and experience certificate of M/s. Orient Cement is thrown out of consideration as income earned from M/s. Orient Cement of 2014-15 is not shown in ITR, this application of mind by the tender committee is wrong. Tender has been floated on 31.05.2016 and documents submitted by petitioner and issued by M/s. Orient Cement was not for the year 2015-16. As per note appearing at page no.4 of the tender document, after qualification conditions, "year" for the purpose of experience is to be taken as financial year, excluding the financial year in which the tender enquiry is floated. Financial year runs from 1st April to 31st March, as stipulated in this note. Thus, the tender enquiry in the present matter is floated the year 2016-17. The said year therefore, gets excluded.

Petitioner therefore, could have shown its competency and experience with reference to five financial year counted backwards i.e., prior to 31.3.2016. The documents looked into by the Tender Committee are for the financial year 2014-15. Tender Committee takes note of the fact that Orient Cement Limited has given experience certificate of Rs. 1205.69 lakhs for the financial year 2014-15. Thereafter the Tender Committee notes that income tax return reveals TDS deduction by Orient Cement only for work done worth Rs. 18.37 Lakhs and not for whole figure certified therein. Hence this certificate has been disbelieved. Reasons recorded by the Tender Committee are reproduced below for ready reference.

16 wp2745.22.doc

"Experience criteria not met as experience certificate of M/s. Oriental Cement is not taken into consideration since income of M/s. Oriental Cement of 2014-15 is not shown in ITR.

Technically disqualified."

16 to 23. ......

24. However, as we find that the certificate issued by IFFCO has not been discarded by recording any reasons and also, has not been independently looked into to consider the eligibility of petitioner in terms of paragraph no.4[A] [a]. Similarly, the certificate issued by M/s. Orient Cement has been eliminated from consideration on erroneous ground. Hence, we are not in a position to sustain the consideration by the tender committee. Any responsible body entrusted with such a vital duty would not have committed such an error by failing to evaluate the documents on record or by not applying the correct legal provisions. The other bidders have pointed out some additional material alleging it to be adequate to disqualify the petitioner. Thus applying the yardsticks mentioned supra in the judgment of the Hon'ble Apex Court, the present exercise and consideration by the tender committee definitely calls for intervention by this Court. That exercise and the order disqualifying the petitioner is unsustainable. Respondent no.2 has pointed out to this court additional material i.e. letter dated 28.01.2016 sent by the Vice President, Human Resources of Orient Cement Ltd., to Maharashtra State Warehousing Corporation. This communication also 17 wp2745.22.doc

needs due verification and its impact on the offer of petitioner deserves to be considered by respondent no.1 through its tender committee."

19. In the case of Sagar Lookouts (supra), our attention has

been drawn to paragraph nos. 36 on the point of work experience.

Paragraph 36 thereof reads thus:

"36. The argument of Dr. Milind Sathe and Mr.Ram Apte that considering the experience of the partner of Sagar Lookouts in Urja would tantamount to a bid being submitted by a consortium does not also commend to us. We have to bear in mind that the tender condition required the bidder to have an experience of erecting and handling 50 hoardings each of minimum 450 sq.ft. in corporation/Authority area. From the stand point of MHADB, the credentials of the person who is entrusted with the performance of work viz. the background of the firm and the persons who are in control of the same and their capacity to execute the work has to be seen. The tendering authority will not go by the name of the firm but the person/s behind it. We have no hesitation in concluding that the Committee completely erred in discarding/ignoring the documents relating to the experience of the partner of the bidder firm. It is not disputed that the bid of the petitioner is held ineligible only on the ground that it does not have the experience of erecting and handling 50 hoardings and on no other ground."

18 wp2745.22.doc

20. In the case of R. K. Chavan Infrastructure Pvt. Ltd.,

(supra) our attention was drawn to paragraph 74 on the point of

requirement of experience certificate. Paragraph 74 reads thus:

"74. It is needless to mention that the purpose and requirement of an experience certificate, is to ascertain the capacity and capability of a tenderer to perform the work intended to be done, and any document demonstrating this position, would comply with the requirement of an experience certificate, unless the terms of the NIT specified that an experience certificate in a particular form/format alone would be acceptable to comply with the qualifying criteria, which is not so in the instant matter. As stated above the substance and not the form is material."

21. The judgment in the case of Reliance Energy Ltd. and

anr. (supra), has been taken aid of by the petitioner to contend

that when tenders are invited, the terms and conditions must

indicate with legal certainty the norms and benchmarks with

clarity so as to ensure legal certainty and necessity to satisfy the

test of "reasonableness." It is further held that if there is

vagueness or subjectivity in the norms specified, it may result in

unequal and discriminatory treatment and violate the doctrine of

"level playing field."

19 wp2745.22.doc

22. As against this, Mr. S. P. Dharmadhikari, learned Senior

Counsel for the respondent no.1-WCL, contended that the tender

document will have to be read as a whole for proper interpretation

of the clauses. He contends, by referring to clauses 6 and 7 of the

NIT that the requirement of the TDS certificate, which the

petitioner has argued to be of ancillary nature, has been stipulated

under the head of "Confirmatory Document". He contends that

the TDS certificate may be sought during clarification or along

with deficit documents but the moment document is sought, it

would fall under the category of "Confirmatory Document" and

that non compliance of the said clause would render the bid of the

petitioner and similarly placed persons as non responsive.

Mr.Dharmadhikari further submits, upon instructions, that the

TDS certificate was sought from all the 16 bidders and that except

the petitioner, the other 15 bidders have submitted the TDS

certificate.

23. Mr. Dharmadhikari further contends that one of the

bidders M/s.Khandelwal Earth Movers, who worked for

MAHAGENCO had submitted TDS certificate and that therefore

there was no reason for the WCL not to expect the petitioner to 20 wp2745.22.doc

furnish the TDS certificate. At this stage, Mrs. Ganediwala,

countered by arguing that the MAHAGENCO probably started

issuing the TDS certificates from the year 2020 onwards and that

the TDS certificate submitted by M/s. Khandelwal Earth Movers

appears to be of the year 2020. Mr. Dharmadhikari, responded by

submitting that, that may be the petitioner's view but how would

WCL know of such a status. In the circumstances, according to

Mr.Dharmadhikari, the least the petitioner could have done is to

furnish letter issued by the MAHAGENCO mentioning that the tax

has not been deducted at source and therefore the TDS certificate

is not issued.

24. Mr. Dharmadhikari further submits that, unless

otherwise is shown, the presumption will be that the

MAHAGENCO, a Government undertaking, shall deduct the tax at

source. The WCL, accordingly expected the petitioners to present

the TDS. The petitioner did not but all others did. Therefore, the

WCL has rightly rejected the technical bid of the petitioner.

25. Mr. Dharmadhikari has then submitted that the

petitioner has not attributed mala fiders or personal bias against

the WCL. Further, there is no reason why the WCL will act

malafidely or arbitrarily in such matters.

21 wp2745.22.doc

26. On the point of difference of Rs.1 Crore in the bids

allegedly submitted by petitioner and the L-I, Mr.Dharmadhikari

submits that for employers like the WCL or any other employer

when the work experience and the capabilities of the bidders are

to be tested, the prime consideration is that the proposed work

should be completed in time and for that purpose, in a given case,

the employer may even ignore the lowest bid.

27. Mr. Dharmadhikari further submits that the petitioner

has interpreted the clauses from its point of view. The position of

law on the point of interpretation of tender document is well

settled and that the Apex Court in various rulings has held that the

authority which floats the contract or tender and has authored the

tender document is the best judge to interpret the tender

clauses/conditions. The Apex Court has further ruled that if two

interpretations are possible then the interpretation that suits the

employer must be accepted and that the courts would only

interfere to prevent the arbitrariness, illegality, bias, mala fides or

perversity. In the present case, the petitioner having not even

pleaded mala fides, arbitrariness, etc. the interpretation of the

WCL that once the TDS certificate is sought, it becomes a

confirmatory document.

22 wp2745.22.doc

28. Mr. Dharmadhikari further submits that the tender

committee which conducts technical evaluation of the bids consists

of different officials for different regions. The tender dated

06.12.2021, which the petitioner cited was for Wani North area

and the tender in the present case is for Ghonsa OCM of Wani

north area and that therefore a different committee has assessed

and evaluated technical bids.

29. The WCL has relied upon the following judgments:

(i) Silppi Constructions Contractors Vs. Union of India and anr.1

(ii) Agmatel India Pvt. Ltd. Vs. Resoursys Telecom and Ors.2

(iii) N.G.Projects Ltd. Vs. Vinod Kumar Jain and Ors.3

(iv) Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd. and anr.4

30. In Silppi Constructions Contractors (supra), the Apex

Court, while dealing with the question of interpretation of tender

document and the scope of judicial review and interference therein

has summarized as under:

"Courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. Courts must realise

1 (2020) 16 SCC 489 2 (2022) 5 SCC 362 3 (2022) 6 SCC 127 4 AIR 2016 SC 4305 23 wp2745.22.doc

their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most Judges do not have the necessary expertise to adjudicate upon technical issues beyond their domain. Courts should give way to the opinion of experts unless the decision is totally arbitrary or unreasonable. Courts should not use a magnifying glass while scanning tenders and make every small mistake appear like a big blunder. Courts must give "fair play in the joints" to government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. Court does not sit like a court of appeal over the appropriate authority. Court must realise that the authority floating the tender is the best judge of its requirements and therefore, the court's interference should be minimal. Authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. Courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity."

31. In the case of Agmatel India Pvt. Ltd. (supra), the

Supreme Court held that if the interpretation of the tender

document by author is manifestly in consonance with the language 24 wp2745.22.doc

of the tender document or subserving the purpose of the tender,

the Court would prefer to keep restraint. It is further held that the

technical evaluation or comparison by the Court is impermissible

and that even if the interpretation given to the tender document

by the person inviting offers is not as such acceptable to the

constitutional court that by itself would not be a reason for

interfering with the interpretation given, so long as such an

interpretation is not arbitrary or whimsical.

32. In the case of N. G. Projects Ltd. (supra), the judgment

which is relied upon by the respondent no.2 as well, various

judgments of the Apex Court were considered, which we will deal

with a little later. The relevant findings, amongst others, is that

the satisfaction on whether a bidder satisfies the tender condition

is primarily of the authority inviting bids since the authority is

aware of expectations from the tenderer while evaluating the

consequences of non performance. The Apex Court further held

that on the same set of facts the different conclusions can be

arrived at in bona fide manner the by technical valuation

Committee.

33. In the case of Afcons Infrastructure Ltd. (supra), the

Apex Court held that where employer has disqualified a bidder at 25 wp2745.22.doc

a technical bid opening the interference by the constitutional Court

in the decision making process or a decision taken by employer is

permissible only when the mala fide intention to favour someone

or arbitrariness or illegality or perversity was shown.

34. Mr. M. G. Bhangde, learned Senior Counsel for

respondent no.2, the successful bidder, has supported the stand

taken by the WCL on the point of interpretation of the tender

condition that the TDS certificate once sought, would fall in the

category of confirmatory document. He further submits that the

petitioner has not challenged the condition requiring bidders to

furnish TDS certificate and therefore the case of the petitioner to

read exception in submitting TDS certificate is impermissible.

35. Mr. Bhangde then argued by referring to clause

nos.22.1 and 24.1 that the WCL is duty bound to award the

contract to the bidder whose bid is determined to be substantially

responsive and who has offered the lowest evaluated acceptable

bid price provided that such bidder has been determined to be

eligible in accordance with the provisions of the NIT. Thus,

according to him, unless and until the bidder becomes eligible in

accordance with the provisions of the NIT, the bid cannot be said

to be substantially responsive. This argument is in response to the 26 wp2745.22.doc

case of the petitioner, that the substantially responsive bid is the

one which confirms all the terms, conditions and specifications of

the bidding documents without material deviation or reservation.

36. Mr. Bhangde further submits that the petitioner cannot

argue that the earlier employer i.e. MAHAGENCO has not issued

the TDS certificate because the condition of tender makes it

mandatory to produce the TDS certificate. In other words, it is

argued that absence of the TDS certificate cannot be explained

and/or accepted.

37. Mr.Bhangde, has then referred to the contract manual

of the WCL wherein chapter 3 deals with Transport Contracts. It

provides under the head "Supporting documents to be uploaded

online", that documents like contract, BOQ, TDS, etc. may be

sought during clarification or along with deficient documents.

Accordingly, he argued that the tender document is in conformity

with the contract manual and therefore tender document and the

decision making process cannot be faulted with.

38. Mr. Bhangde, by referring to clause 12 (E) of the tender

document, submits that the bidder will be considered eligible for

opening the price bid only when he submits the requisite

documents online as per the NIT. The petitioner having failed to 27 wp2745.22.doc

submit the TDS certificate, has been rightly rendered disqualified.

At this stage, Mrs. Ganediwala, has immediately referred to sub

clauses (F) and (G) to contend that there is a provision to seek

clarification and once the clarification is given, the bid would

become substantially responsive. Mr. Bhangde, in response,

submitted that the clarification has to be in tune with the clauses

of the NIT and a mere statement that the tax has not been

deducted by the MAHAGENCO will not substitute the requirement

of submitting the TDS certificate.

39. According to Mr. Bhangde, the petitioner has failed to

satisfy the requirement of experience in terms of the NIT and that

therefore respondent no.1 has rightly disqualified the petitioner in

technical bid. In support of his contention, Mr. Bhangde has relied

upon the following decisions:

(i) Sorath Builders Vs. Shreejikrupa Buildcon Limited and another1

(ii) N. G. Projects Ltd. Vs. Vinod Kumar Jain and Ors.2

(iii) National High Speed Rail Corporation Ltd. Vs. Montecarlo Ltd. and anr.3

(iv) Union of India & Ors. Vs. Bharat Forge Ltd. & anr.4 1 (2009) 11 SCC 9 2 (2022) 6 SCC 127 3 (2022) 6 SCC 401 4 2022 (12) SCALE 122 28 wp2745.22.doc

40. In the case of Sorath Builders (supra), the Apex Court

while dealing with the binding effect of the tender conditions, held

that the rejection of the bid due to failure to satisfy the

requirement of experience is justified. Our attention has been

drawn to paragraph 26, which reads thus:

26. In W.B.State Electricity Board Vs.Patel Engineering Co.Ltd. and Others, reported in (2001) 2 SCC 451, this Court while considering the issue with regard to the process of tender (SCC p.467, para 24)

"24. .....where bidders who fulfill prequalification alone are invited to bid, adherence to the instructions cannot be given a go-by by branding it as a pedantic approach, otherwise it will encourage and provide scope for discrimination, arbitrariness and favouritism which are totally opposed to the rule of law and constitutional values".

It was also held:

"24. .....the very purpose of issuing rules/instructions is to ensure their enforcement lest the rule of law should be a casualty". It was further held: (SC p. 471 para 31)

"31. .....the contract is awarded, normally, to the lowest tenderer which is in public interest and that it is equally in public interest to adhere to the rules and conditions subject to which bids are invited".

29 wp2745.22.doc

41. In the case of N. G. Projects Ltd. (supra), as stated

earlier, the Apex Court has considered various judgments, some of

which, according to Mr. Bhangde, are relevant to decide the

question involved in the present case. The Apex Court considered

various judgments in paragraph nos. 11, 12 and 13, which read

thus:

"11. Learned counsel for the appellant also referred to a judgment reported as Central Coalfields Limited & Anr v. SLL-SML (Joint Venture Consortium) & Ors. wherein it was held that it was not for the Court to substitute its opinion in respect of acceptance of bank guarantee. It was held that when a particular format for a bank guarantee is prescribed, then the bidder is required to stick to that particular format alone with the caveat that the State reserves the right to deviate from the terms of the bid document within the acceptable parameters. This Court held as under:

"32. The core issue in these appeals is not of judicial review of the administrative action of CCL in adhering to the terms of NIT and the GTC prescribed by it while dealing with bids furnished by participants in the bidding process. The core issue is whether CCL acted perversely enough in rejecting the bank guarantee of JVC on the ground that it was not in the prescribed format, thereby calling for judicial review by a constitutional court and interfering with CCL's decision.

              *          *          *
                               30                       wp2745.22.doc

37. For JVC to say that its bank guarantee was in terms stricter than the prescribed format is neither here nor there. It is not for the employer or this Court to scrutinise every bank guarantee to determine whether it is stricter than the prescribed format or less rigorous. The fact is that a format was prescribed and there was no reason not to adhere to it. The goalposts cannot be rear-

ranged or asked to be rearranged during the bidding process to affect the right of some or deny a privilege to some.

47. The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. As held in Ramana Dayaram Shetty the terms of NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision-making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision "that no responsible authority acting reasonably and in accordance with relevant law could have reached" as held in Jagdish Mandal followed in Michigan Rubber.

49. Again, looked at from the point of view of the employer if the courts take over the decision- making function of the employer and make a distinction between essential and non-essential terms contrary to the intention of the employer and thereby rewrite the arrangement, it could 31 wp2745.22.doc

lead to all sorts of problems including the one that we are grappling with. For example, the GTC that we are concerned with specifically states in Clause 15.2 that "Any bid not accompanied by an acceptable Bid Security/EMD shall be rejected by the employer as non-responsive". Surely, CCL ex facie intended this term to be mandatory, yet the High Court held that the bank guarantee in a format not prescribed by it ought to be accepted since that requirement was a non-essential term of the GTC. From the point of view of CCL, the GTC has been impermissibly rewritten by the High Court."

12. In Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited, this Court held that 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 was held as under:

"13. In other words, 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.

15. We may add that 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. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or 32 wp2745.22.doc

perversity in the understanding or appreciation or in the application of the terms of the tender conditions. 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."

13. This Court sounded a word of caution in another judgment reported as Silppi Constructions V. Union of India, wherein it was held that the Courts must realize their limitations and the havoc which needless interference in commercial matters could cause. In contracts involving technical issues, the Courts should be even more reluctant because most of us in judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain . As laid down in the judgments cited above, the Courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints" to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference would cause unnecessary loss to the public exchequer..."

42. In the case of National High Speed Rail Corporation

Ltd. (supra), our attention has been drawn to paragraph nos. 38

and 42 on the point of manner in which the terms of tender should 33 wp2745.22.doc

be read. Paragraph no. 38 and 42 thereof read thus:

"38. the High Court ought to have appreciated that the Bullet Train Project is a result of long-drawn deliberations between the Government of India on the one hand and the Government of Japan on the other. That thereafter a loan agreement came to be executed between the Japan International Cooperation Agency (JICA) and Hon'ble the President of India and the JICA agreed to fund approximately Rs.1 lakh crores for the project on the terms and conditions mentioned in the loan agreement and the other agreed terms including the terms and conditions of the Bid document shall be finalized by the JICA/JICC. The Bidding Documents are based on JICA's Standard Bidding Documents as well as based on JICA's procurement guidelines, which form an integral part of the loan agreement. Therefore, any decision contrary to the terms and conditions of the Bidding Document would be altering the terms and conditions of the loan agreement, which would not be permissible. JICA has a vital role to play in such contracts.

39 to 41. ...

42. Even otherwise, it is required to be noted that Clauses 28.1 and 42.5 of ITB were well within the knowledge of the original writ petitioner at the time of participating in the tender process. The aforesaid clauses of the ITB were put to the knowledge of all the participants/bidders and the same applied to all.

34 wp2745.22.doc

Despite the above clauses in the ITB, original writ petitioner participated in the tender process.

Therefore, once having accepted the terms and conditions of the tender process with the full knowledge of Clauses 28.1 and 42.5, and participated with full knowledge, thereafter, it was not open for the original writ petitioner to make a grievance with respect to such clauses. 14.1 Even otherwise, it is required to be noted that Clauses 28.1 and 42.5 are part of the instructions to the Bidders (ITB) and, therefore, part of the Bidding Document. At this stage, it is required to be noted that loan agreement was materialized after a detailed Memorandum of Understanding and the loan agreement between the two Prime Ministers and how the project would be financed and operated. That thereafter followed by general consultancy of the project discussion, it was culminated into a loan agreement with the specific condition that the terms of the contract and the Bid document shall be finalised and prepared by JICC and approved by JICA. It appears that the contents of the Bidding Document are based on JICA' Standard Bidding Documents as well as JICA's procurement guidelines and form an integral part of the loan agreement. It is to be noted that such foreign funded investments in the form of concessional Official Development Assistance (ODA) loan by JICA are made on the basis of non-negotiated terms and conditions, where the sole discretion as to what will be the terms 35 wp2745.22.doc

and conditions of the tender and on what terms and conditions the project would be financed, vests with the investor foreign developed nation. Therefore, the impugned judgment and order passed by the High Court on Clauses 28.1 and 42.5 would be altering the terms and conditions of the Bid Document / ITB, which as such were finalized and approved by the JICC/JICA and which were provided as per the JICA's international guidelines and which as such were to be complied with by all the bidders/participants." [

43. In the case of Union of India & Ors. Vs. Bharat Forge

Ltd. & anr. (supra), our attention has been drawn to paragraph

nos. 39 and 43, which read thus:

"39. The terms of the bid cannot be said to be afflicted with the vice of legal uncertainty. This is not a case where the principle as enunciated in Reliance Energy (supra) would be apposite. It is elementary that principles enunciated in the facts of a case are not be likened to Euclid's Theorem, having an inexorable operation divorced from the facts which arise for consideration. In this case, the interplay of the three Clauses, which we have referred to, and its conjoint operation, could not have left the bidders or the purchasers (appellants) in any uncertainty.

40 to 42 ...

43. The argument of the writ petitioner, which has found favour with the High Court and reiterated 36 wp2745.22.doc

before us by Shri Amar Dave, learned Counsel for the writ petitioner is that since the tender conditions contemplate the adding of the tax to the base price for the purpose of arriving at the ranking, which, in turn, will determine, as to who will be the successful bidder, there is the unfair trade practice indulged in by some of the bidders to understate the rate of tax. There is an eminent need for the State (appellants) to indicate the HSN Code. Once it is indicated, it becomes a panacea, as it were, to the evil, which has been perceived and successfully pressed by the writ petitioner. Is that so? The answer to this question, has both legal and factual dimensions. As far as the legal aspects are concerned, the fundamental question, we must pose is, whether there exists any public duty with the appellants to indicate the HSN Code when they float a public tender. Here the learned ASG is correct, when he points out that there is no statutory duty cast on the appellants to indicate the HSN Code in a tender of the kind we are concerned with. Proceeding on the basis that a public duty may emerge, not merely from a Statute but in various other ways, which has been touched upon, in Andi Mukta (supra) as also, in Mansukh Lal (supra) and even on an expansive exploration, does such a duty flow from any other legitimate source?

44. Mr. Bhangde, taking aid of these judgments, supports

the stand taken by the WCL and prays for dismissal of the petition.

37 wp2745.22.doc

45. We have given our anxious consideration to the

submissions made by both the sides. We have gone through the

material placed before us including the tender document in the

light of judgments relied upon by both the sides.

46. The main question before us is whether the submission

of the TDS certificate was mandatory, once sought by the

respondent WCL?

47. We appreciate the manner in which Mrs. Ganediwala,

learned counsel for the petitioners, has presented the case. The

primary requirement under Clauses 6 and 7 is to submit 'work

experience certificate'. These clauses further provide that the work

order, BOQ, TDS Certificate, etc. may be sought during

clarification with deficit documents. The petitioner, therefore, is

correct in contending that the genesis of the document is the work

experience certificate.

48. The petitioner believes that the TDS certificate may or

may not be sought during clarification and therefore is not a

mandatory document. The petitioner has a reason to believe so.

The reason being, in similar set of facts, in the earlier tender dated

06.12.2021, when the WCL sought TDS certificate, the petitioner

has tendered an explanation that MAHAGENCO had not deducted 38 wp2745.22.doc

the tax on the payments made to it and therefore the TDS

certificate was not issued and that the petitioner enclosed

summary of payments so also income tax return to show its

financial ability which was accepted by the WCL. The petitioner,

therefore had every reason to presume that its explanation will be

accepted in the present tender as well and that it has sufficiently

complied with the eligibility criteria and therefore its tender is

responsive.

49. This, however, is the petitioner's perspective. The

respondents have a different version. Their arguments have

already been noted. According to the respondents, though the

work experience certificate is of prime importance, the

requirement to submit work order, BOQ, TDS certificate, etc. once

sought during the clarification would become equally important as

the provisions requiring both, work experience certificate and TDS

certificate, is stipulated under the category of "Confirmatory

Document".

50. On the point of acceptance of explanation of the

petitioner in the earlier tender, the respondents' answer is that the

mistake committed, if any, will not give any right to the petitioner

to claim similar such relief and that mistake can always be 39 wp2745.22.doc

corrected. It is further the case of the respondents that the tender

committee consist of different officials for different regions and

therefore the acceptance of explanation by one committee is not

binding on another committee. It is for the employer to interpret

the tender document. Thus, in the present case, the TDS

certificate was found to be a mandatory document and therefore

technical bid has been rightly rejected.

51. Thus, there are two views or angles. One is of the

petitioner and another is of the respondents. We are inclined to

accept the view of the respondents for the reasons to follow.

52. Admittedly, the work experience certificate issued by

the employer against the experience of similar work is an

important document. The work experience certificate issued in

favour of the petitioner would show that the petitioner has

executed similar such works and that the value of the execution is

to the tune of Rs.9.60 Crores approximately, which is more than

the work experience required under clause 6 of the tender

document.

53. The WCL thought it proper, for whatsoever reason, to

seek TDS certificate for the financial year 2017-18. It was within

the discretion of the WCL. Once such clarification is sought, the 40 wp2745.22.doc

only interpretation that is possible, if clauses 6 and 7 are read

carefully, is that submitting TDS certificate is mandatory being a

confirmatory document. Ultimately, TDS certificate is a document

that would substantiate the claim made by the persons like the

petitioner on completing the value of the work as shown in the

experience certificate. There cannot be any dispute that the

deduction of tax at source is a mandatory requirement under the

Income Tax Act and that failure to deduct the tax leads to the

penal consequence and that therefore the WCL has every reason to

believe that in absence of TDS certificate the petitioner's claim of

completing the valued work shown in the experience certificate is

doubtful.

54. The WCL had one more reason to expect the TDS

certificate from the petitioner as the work experience certificate

was issued by the MAHAGENCO, a Government undertaking and

that therefore there will be presumption that the provisions of

Income Tax Act have been duly complied with, which includes the

tax deduction at source. The WCL has furthermore a reason to

expect the TDS certificate from the petitioner. The reason being

the other tenderer M/s. Khandelwal Earthmovers Ltd., who

worked for MAHAGENCO has submitted the TDS certificate. The 41 wp2745.22.doc

argument of petitioner that MAHAGENCO has started issuing TDS

certificates subsequently and that the tax was not deducted during

the financial year 2017-18, though correct from its perspective,

would be insignificant from the perspective of the WCL inasmuch

as it is not even the case of the petitioner that the WCL is in know

of the said fact. The WCL, therefore, cannot be blamed on this

point.

55. Further, there is nothing on record to show that the

tender committee which accepted the explanation of the petitioner

on the earlier occasion is the same which has turned down the

explanation in the present case. Mr. Dharmadhikari, learned

Senior Counsel for the WCL has categorically stated that the

officials in the tender committees for the different regions are

different. It is further not the case of the petitioner that the WCL

is aware that MAHAGENCO has started issuing TDS certificate

subsequent to the year 2017-18 and that MAHAGENCO has not

deducted tax at source for the financial year 2017-18. The WCL

therefore was fully justified in examining the bids in the light of

the tender clauses. The clauses in the tender document,

particularly qualifying clauses, are incorporated by the employer to

get the suitable bidder for the proposed work. In that sense there 42 wp2745.22.doc

is a purpose behind such clauses. This appears us to be one of the

reasons why the Apex Court has ruled that the employer is the best

person to interpret the clauses of tender document.

56. Mr. Dharmadhikari has therefore correctly pointed out

that the least that the petitioner could have done is to submit a

document from MAHAGENCO to that effect. We also find

substance in the stand taken by the WCL that in similar set of

facts, two different committees may take different views

depending on the requirements and that such stand is supported

by the judgment of the Hon'ble Apex Court in the case of N. G.

Projects Ltd. (supra).

57. Mr. Bhangde, learned Senior Counsel for respondent

no.2 has brought to our notice that the petitioner has not

challenged the condition seeking TDS certificate in the

clarification. The bid of the petitioner, therefore, cannot be said to

be substantially responsive in terms of clauses 21.1 because for

substantially responsive bid, the bidder has to be eligible in

accordance with the provisions of NIT. The requirement of

submitting TDS certificate cannot be substituted by the statement

that the earlier employer viz. MAHAGENCO has not deducted the

tax at source.

43 wp2745.22.doc

58. The other clauses which have been relied upon by the

petitioner would also indicate that only when the requisite

documents are uploaded online as per the NIT, the bidder will be

considered eligible for opening of the price bid. The requisite

document would mean the documents sought by the WCL in

clarification as well.

59. The petitioner made an attempt to substantiate its case

by relying upon the judgments referred to in the earlier

paragraphs. We have gone through the said judgments. The

reliefs granted therein were in the peculiar facts and the tender

clauses therein. In essence, the principle of law laid down in the

said judgments is that the requirements in the tender can be

classified in two categories viz. essential condition of eligibility and

ancillary or subsidiary condition of eligibility. Accordingly, it is

held in the judgments, in context with the tender conditions in

respective cases that where essential condition has not been

complied with and employer has accepted the bid, the Court

would interfere in the matter. The Court may also interfere in the

matter where the employer has not considered the documents

furnished by the bidders in accordance with the prescribed

eligibility criteria.

44 wp2745.22.doc

60. In the present case, however, the petitioner failed to

show that the WCL has not considered the documents submitted

by the petitioners in accordance with the tender conditions or that

WCL exceeded its authority in evaluating the petitioner's

documents. The petitioner's case is based on interpretation of

clauses 6 and 7 of the tender conditions, that the requirement to

furnish documents viz. work order, BOQ and TDS, etc., if sought

by the WCL, is not a mandatory condition; which we found to be

not sustainable. In other words, the said condition was found to

be mandatory and therefore non compliance of the said condition

would render the bid to be not responsive. We have not noticed in

the judgments cited by the petitioner any clause of a nature similar

to clauses 6 and 7, where the Court has interpreted the clause as

suggested by the present petitioner. Therefore, the judgments

relied upon by the petitioner will not be of any help in this case.

61. The law in tender jurisdiction, in last decade or so, has

seen a significant change. The judgments relied upon by the

respondents would indicate that unless mala fides, arbitrariness,

perversity, intention to favour someone, etc. in the decision

making process has been pleaded and shown by the persons like

the petitioner, the interpretation of the clauses chosen by the 45 wp2745.22.doc

employer or the decision of the employer to award contract to a

particular agency, cannot be faulted with. It is so because the

authority floating the tender is the best judge of its requirements

and as to how the documents have to be interpreted.

62. The tender under question is in respect of loading and

transportation of coal at Ghonsa OCM of Wani north area. The

cost of the tender is about 20 Crores. The time for completion of

tender is of utmost importance. Therefore the condition of work

experience under the eligibility criteria attains a significant

importance. Failure to complete the work not only affects the

future course of action but also affects the cost of the work

because of escalation in prices. In that sense difference of Rs.1

Crore or so in the bid quoted by the petitioner and the lowest

bidder would be insignificant; if it is found that the petitioner does

not possess the requisite experience to handle the work.

63. It is, thus, for the employer to decide as to who will be

the best suited agency for taking up its work. The clauses of the

tender are interpreted accordingly. In the present case, the WCL

was of the view that the submission of TDS certificate once sought

would be mandatory for the bidder. Such an interpretation must

be respected in the light of the law laid down by the Hon'ble

Supreme Court.

46 wp2745.22.doc

64. We are, therefore, not inclined to exercise jurisdiction

under Article 226 of the Constitution of India. The petition is

dismissed accordingly.

Rule is discharged. No order as to costs.

(Anil L. Pansare, J.) (A. S. Chandurkar, J.)

kahale

Digitally signed byYOGESH ARVIND KAHALE Signing Date:21.12.2022 19:34