Bombay High Court
Macedon Vinimay Pvt Ltd And Anr vs Maharashtra State Electricity ... on 10 February, 2022
Bench: G.S. Patel, Madhav J. Jamdar
926-OSWPL-2673-2022.DOC
Dusane
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.2673 OF 2022
BHALCHANDRA
GOPAL DUSANE
Macedon Vinimay Pvt Ltd & Anr ...Petitioners
Versus
Digitally signed by
BHALCHANDRA
GOPAL DUSANE
Date: 2022.02.11
15:17:43 +0530
Maharashtra State Electricity
Distribution Company Ltd & Anr. ...Respondents
Mr Abhijeet Desai i/b Navin Arora, for the Petitioners.
Mr Zal Andhyarujuna, Senior Advocate, with Deepa Chavan i/b
Little & Co for the Respondents.
CORAM G.S. Patel &
Madhav J. Jamdar, JJ.
DATED: 10th February 2022
PC:-
1. Heard Mr Desai for the Petitioners.
2. The Petition is frstly infructuous because in respect of the
tender in question, a letter of award has already been issued on 8th
February 2022 to another bidder.
3. Secondly, we do not believe that the settled law allows us to
intervene at the instance of such petitioners to grant these reliefs.
The Petitioners would have us direct Respondents Nos.1 and 2 to
consider their technical and price bids "fairly" and accept the ofer
10th February 2022
926-OSWPL-2673-2022.DOC
made by the Petitioners after considering the price bid. There can be
no such mandatory direction in a Government tender matter. The
next prayer is for a direction to the Respondents to reconsider the
technical and price bids of the Petitioners "so that the Petitioners
can be accepted as successful bidders".
4. If there was any doubt about the intention of this petition, it is
entirely put to rest by prayer clause (c) at page 15, which reads thus:
"c) A Writ of or in the nature of Mandamus do issue
directing the Respondent authorities to declare the
Petitioners as successful bidders in respect of the tender in
question."
5. Ex facie, this Petition dismisses itself. There cannot be a
mandamus awarding a contract to a particular person. It is not for
this Court in exercise of its writ jurisdiction to rewrite terms of the
tender or to take decision that the tendering authority is best placed
to take. We cannot assess these matters on that technical merits.
6. The entire frame of the petition is contrary to the settled law
as recently enunciated by the Supreme Court in Agmatel India Pvt
Ltd v Resoursys Telecom & Ors.1 This is a decision of 31st January
2022. It considers the previous decisions of the Supreme Court and,
in particular, in paragraph 21, the decision in Tata Cellular v Union
of India.2 Finally, after a comprehensive analysis of law, in
paragraphs 38 and 39, the Supreme Court held:
1 2022 SCC Online SC 113.
2 (1994) 6 SCC 651.
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38. The scope of judicial review in contractual matters,
and particularly in relation to the process of interpretation
of tender document, has been the subject matter of
discussion in various decisions of this Court. We need not
multiply the authorities on the subject, as sufce it would be
refer to the 3-Judge Bench decision of this Court in Galaxy
Transport Agency (supra) wherein, among others, the said
decision in Afcons Infrastructure Limited (supra) has also
been considered; and this Court has disapproved the
interference by the High Court in the interpretation by the
tender inviting authority of the eligibility term relating to
the category of vehicles required to be held by the bidders,
in the tender foated for supply of vehicles for the carriage
of troops and equipment. This Court referred to various
decisions on the subject and stated the legal principles as
follows:-
"14. In a series of judgments, this Court has
held that the authority that authors the tender
document is the best person to understand
and appreciate its requirements, and thus, its
interpretation should not be second-guessed
by a court in judicial review proceedings. In
Afcons Infrastructure Ltd. v. Nagpur Metro
Rail Corporation Ltd., (2016) 16 SCC 818,
this Court held:
"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
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understanding and appreciation
of the tender documents, unless
there is mala fde or 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."
(page 825)
(emphasis supplied)
39. The above-mentioned statements of law make it
amply clear that the author of the tender document is taken
to be the best person to understand and appreciate its
requirements; and if its interpretation is manifestly in
consonance with the language of the tender document or
subserving the purchase of the tender, the Court would
prefer to keep restraint. Further to that, the technical
evaluation or comparison by the Court is impermissible;
and even if the interpretation given to the tender document
by the person inviting ofers is not as such acceptable to the
Constitutional Court, that, by itself, would not be a reason
for interfering with the interpretation given.
7. In view of this, we see no reason to interfere. The Petition is
rejected.
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8. It is open for the Petitioner to adopt civil remedies, if so
advised and if permissible in law. There will be no order as to costs.
9. All concerned will act on production of a digitally signed copy
of this order.
(Madhav J. Jamdar, J) (G. S. Patel, J)
10th February 2022
