M/S Tirath Singh Bhatia, Thr. ... vs The State Of Maha., Thr. Secy., ...
2022 Latest Caselaw 788 Bom

WP 4084-21                                    1                      Judgment

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                       NAGPUR BENCH, NAGPUR.
                       WRIT PETITION NO. 4084/2021

M/s Tirath Singh Bhatia,
A proprietorship Firm, through Proprietor
Tirath Singh Bhatia, aged 75 years,
Shri Gurunanak Gate, Gondia-441601.                               PETITIONER

                                   -VERSUS-

1.     The State of Maharashtra, through its Secretary,
       Department of Food, Civil Supplies and Consumer
       Protection Department, 2nd floor, Mantralaya Annex
       Building, Madam Cama Road, Mumbai - 400 032.
2.     Rajkumar Gulati, Occ. Business,
       114, Sadoday Enclave, Kadbi Chowk, Nagpur.
3.     Kripalsingh Premsingh Gulati, Occ. Business,
       Gulati Building, Main Road, Washim-444995.
4.     M.O. Holani, Occ. Business,
       Baheti Complex, Hingoli Road, Bafna,
       Anand Nagar, Nanded 431605.                         RESPONDENTS
__________________________________________________________________________
               Shri R.S. Parsodkar, counsel for the petitioner.
    Ms N.P. Mehta, Assistant Government Pleader for the respondent no.1.
 Shri M.G. Bhangde, Senior Advocate with Shri M.P. Khajanchi, counsel for the
                              respondent no.2.

CORAM : A. S. CHANDURKAR AND SMT. PUSHPA V. GANEDIWALA, JJ.

DATE     : 20TH JANUARY, 2022.
ORAL JUDGMENT         (PER : A.S. CHANDURKAR, J.)

In view of notice of final disposal, issued earlier, we have heard the

learned counsel for the parties by issuing RULE and making it returnable

forthwith.

2. The petitioner is aggrieved by the communication dated

12.08.2021 by which it has been disqualified as being ineligible for

further participation in the tender process initiated by the respondent

no.1. On 19.05.2021 the respondent no.1 issued a tender notice in the WP 4084-21 2 Judgment

matter of transport of food-grains for public distribution for a period of

three years. The request for proposal for appointment of transporters to

transport food-grains and other essentials to Fair Price Shops was issued

on 21.05.2021. As per the schedule, interested bidders were required to

submit their documents by 5.30 p.m. on 11.06.2021. The work in

question was to be undertaken in accordance with the Government

Resolution dated 15.01.2021 which laid down various guidelines in that

regard. After scrutiny of the bids, on 30.07.2021 the respondent no.1

called upon the petitioner to remove certain defects that were found in

the documents furnished by the petitioner. The same was to be done by

06.08.2021. The petitioner on 06.08.2021 removed those deficiencies by

furnishing various documents in that regard. After scrutiny the petitioner

was informed on 12.08.2021 that it was not qualified to participate in the

tender process for the reason that the requisite experience of work as

prescribed in the tender notice was not satisfied by the petitioner. Being

aggrieved, the petitioner has challenged the aforesaid communication.

3. Shri R.S. Parsodkar, learned counsel for the petitioner submitted

that the technical bid of the petitioner has been rejected by the

respondent no.1 despite the fact that the petitioner duly satisfied the

requirements of Clauses QC 6 and QC 9 of the Tender Document as well

as the requirement prescribed by Clauses 5.1 and 5.2 of Government

Resolution dated 15.01.2021. Referring to the judgment dated

28.06.2021 in Writ Petition No.750 of 2021 [Prithviraj Enterprises Versus WP 4084-21 3 Judgment

State of Maharashtra & Another ] as well as the clarification issued by the

State Government that was considered therein, it was submitted that a

tenderer having experience of transportation of the first phase of Clause

QC 9 was sufficient and it was not necessary to have experience of the

second phase as stipulated. Inviting attention to the District-Sheet

pertaining to Gondia district it was submitted that as per Clauses 11 and

11.1 thereof, the requisite experience in transportation of food-grains as

required was 70793 Metric Tonnes for each phase. As per the experience

certificates issued by the Competent Authority dated 15.04.2021 and

20.04.2021, it was clear that the petitioner had sufficient experience

which exceeded the minimum experience prescribed in the request for

proposal document as well as the District-Sheet. Despite submitting these

experience certificates the respondent no.1 on 30.07.2021 issued a

communication seeking to point out certain defects in the bid submitted

by the petitioner. One of the queries made was that the transportation

undertaken with regard to the second phase was on a lower side and a

clarification in that regard was sought. The petitioner on 06.08.2021

clearly stated that as per the judgment of this Court in Writ Petition

No.750 of 2021 it was sufficient to have experience of the first phase in

the matter of transportation. Despite that the respondent no.1 in an

illegal and arbitrary manner proceeded to reject the technical bid of the

petitioner on the ground that the experience in transportation as required

in the district was insufficient insofar as the petitioner was concerned. He

submitted that though the State Government had clarified that the WP 4084-21 4 Judgment

requisite experience gained from the transportation of the food-grains in

the first phase was sufficient, the respondent no.1 had taken into

consideration the experience required for both the phases. This was

clearly contrary to the clarification given by the State Government and

hence it was clear that the technical bid of the petitioner was illegally

disqualified. Inviting attention to the judgment of the Division Bench in

Shri Vyankatesh Trading Company Versus Food Corporation of India &

Another [(2016) 5 BCR 717], it was submitted that illegal rejection of the

petitioner's technical bid was not sustainable in law. The learned counsel

further submitted that though by passing an ad-interim order on

14.10.2021 making the work order if issued subject to further orders in

the writ petition, the respondent no.1 illegally proceeded to issue the

work order in favour of respondent no.2 on 24.12.2021. By amending

the writ petition, it was submitted that said work order was also under

challenge. Thus it was urged that the impugned order dated 12.08.2021

having been passed in a manner contrary to the Government Resolution

dated 15.01.2021 as well as the request for proposal the same was liable

to be set aside. Consequentially, the work order issued to the respondent

no.2 would not survive. Since the financial bid of the petitioner was

much lower in comparison to the financial bid of the respondent no.2

which came to be accepted, it was urged that the petitioner was entitled

to be granted the said work order. It was thus prayed that the reliefs as

prayed for be granted to the petitioner.

WP 4084-21 5 Judgment

4. Ms N.P. Mehta, learned Assistant Government Pleader for the

respondent no.1 supported the impugned action. It was pointed out that

after considering the experience certificates furnished by the petitioner

alongwith the technical bid, it was found that the petitioner did not have

requisite experience that was prescribed therein. The certificates

produced by the petitioner did not indicate actual experience since such

experience was required to be shown to be eligible for further

participation in the tender process. The certificates relied upon indicated

cumulative experience gained over a period of more than two years.

Reference was also made to the affidavit-in-reply filed by the respondent

no.1 and it was denied that the petitioner's technical bid had been

illegally or arbitrarily rejected. The learned Assistant Government

Pleader placed reliance on the judgment of this Court in Writ Petition

No.5460 of 2021 [M/s Krushna Kumar Gokulchand Versus State of

Maharashtra & Others] decided on 14.01.2022.

5. Shri M.G. Bhangde, learned Senior Advocate for the respondent

no.2 opposed the submissions as made by the petitioner. He submitted

that the respondent no.1 by issuing a Corrigendum on 03.06.2021 had

clarified that the experience with regard to transportation as required by

Government Resolution dated 15.01.2021 and the request for proposal

document pertained to successive preceding five years for the period from

2015-16 to 2019-20. The certificates relied upon by the petitioner

referred to a combined period of two to three years and actual WP 4084-21 6 Judgment

transportation experience was not indicated in any certificate. Moreover,

the said certificates indicated experience in handling and transportation

of food-grains. There was no bifurcation in the said certificates to

indicate the quantity of food-grains transported in one financial year as

was required. It was also pointed out that the petitioner has sought to

rely upon experience certificates for the period after April-2020 which

was therefore not relevant in the light of the Corrigendum as issued. It is

on that basis that the respondent no.1 had found that the petitioner was

lacking in the requisite experience as demanded by the tender notice.

The learned Senior Advocate further submitted that there was no merit in

the submission of the petitioner that its financial bid being lower than the

rates quoted by the respondent no.2, the same ought to be accepted.

Once it was found that the petitioner was not duly qualified in the

submission of its technical bid there was no question of considering its

financial bid. He also placed reliance on the decision of this Court in M/s

Krushna Kumar Gokulchand (supra). It was thus prayed that no

interference was called for in the facts of the present case.

6. We have heard the learned counsel for the parties at length and we

have perused the relevant documents that were placed on record. The

challenge as raised by the petitioner is to the conclusion of the Tendering

Authority that the petitioner was not qualified to participate in the further

tender process as the petitioner did not have experience of minimum WP 4084-21 7 Judgment

transportation of food-grains as prescribed by Clause 5.1 of the

Government Resolution dated 15.01.2021.

Before considering the validity of the impugned communication it

would be necessary to keep in mind the scope that is available for the

Court to interfere under Article 226 of the Constitution of India in such

matters. Adjudication of the challenge as raised by the petitioner would

require consideration of Clauses 5.1 and 5.2 of the Government

Resolution dated 15.01.2021 as well as Clauses QC 6 and QC 9 of the

request for proposal document. In this regard reference can be made to

the decision in Afcons Infrastructure Limited Versus Nagpur Metro Rail

Corporation Limited & Another [(2016) 16 SCC 818] wherein it was held

that the author of the tender document is the best person to understand

and appreciate all of its requirements. Interpretation of the terms of the

tender document should be best left to the Tendering Authority and a

mere disagreement with the decision making process or the decision of

the administrative authority is no ground/reason for a Constitutional

Court to interfere in such matters. 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 itself. This decision has been thereafter referred to

in JSW Infrastructure Limited & Another Versus Kakinada Seaports Ltd.

& Others [2017(4) Mh.L.J. 855]. Afcons Infrastructure Ltd. (supra) has

also been referred to in Municipal Corporation, Ujjain & Another Versus

BVG India Limited & Others [(2018) 5 SCC 462] which was decided by WP 4084-21 8 Judgment

the Bench of three learned Judges of the Hon'ble Supreme Court. The

Hon'ble Supreme Court considered the question as to whether

independent evaluation of technical/financial bids could be done by the

High Court. It was observed that only when the decision making process

is so arbitrary or irrational that no reasonable authority proceeding

reasonably or lawfully could have arrived at such decision that the power

of judicial review could be exercised. Yet again in Caretel Infotech Ltd.

Versus Hindustan Petroleum Corporation Limited & Others [AIR 2019 SC

3327] it was reiterated by holding that it would not be proper for the

Court to substitute its understanding of the tender document in place of

what was understood by the Tendering Authority. In the absence of any

illegality, arbitrariness, irrationality or unreasonableness there would be

no reason to interfere with the conclusion of the Tendering Authority only

on the ground that a different interpretation from the one recorded by the

Tendering Authority can be arrived at.

7. Keeping the aforesaid legal position in mind the grounds raised by

the petitioner in the challenge to the impugned communication could be

considered. The petitioner contends that the manner in which the

guidelines as laid down in the request for proposal have been considered

was not correct and that the petitioner had the requisite experience on

the basis of the experience certificates issued to it.

8. Clauses 5.1 and 5.2 of the Government Resolution dated

15.01.2021 when translated read as under:

 WP 4084-21                                  9                      Judgment

       "5.1) Work Experience:
              Tenderer should have the experience of the work of

Government/Semi-Government food grain transportation of minimum one year out of previous five continuous financial years. Work experience of the tenderer should be upto the capacity of 33% of the work of transportation which has been carried out during previous three years in the district where he is filling the tender for district/zone. It is necessary that the said experience should be in the name of the tenderer himself who is filing the tender.

5.2) The experience of the work mentioned at para 5.1 above should be of doorstep delivery scheme and work of any other schemes of Government/Semi-Government transportation of Central/State Government similar to this scheme. For considering the experience of transportation with Central/ State Government and Semi-Government undertakings, copies of all work orders and experience certificate of the Competent Authority will be required to be submitted."

These clauses would have to be read as a whole and on doing so it

becomes clear that what is required is that a tenderer should have the

experience of transportation of food-grains in the previous five financial

years out of which such experience for at least one year should be with

regard to work of Government/Semi Government Institutions. The work

experience should be up to the capacity of 33% of the work of

transportation that has been carried out during the previous three years

in the District where the tender is sought to be submitted. Such

experience should be in the name of the tenderer itself. As per the WP 4084-21 10 Judgment

Corrigendum issued by the respondent no.1 on 03.06.2021 the requisite

experience in transportation was to be shown from 2015-16 to 2019-20.

9. As per the District-Sheet prescribing the experience in

transportation of food-grains as required, it is seen that by Clauses 11 and

11.1 thereof, the experience ought to be in transportation of 70793 Metric

Tonnes for each phase. As per the certificate dated 20.04.2021 the

Central Warehousing Corporation has certified that the petitioner had

worked as its Handling and Transportation Service Provider at its Gondia

warehouse for the work of rake handling and transportation of food-

grains. The details of handling and transportation work carried out by

the petitioner was stated to be from 27.03.2017 to 26.06.2019. It was

certified that the volume of work 'handled' in Metric Tonnes was

130411.4862. As per the other certificate issued on the same date, the

period certified is from 02.04.2019 to 01.07.2021 and the volume of work

'handled' in Metric Tonnes was 245145.491. In both these certificates it

has been stated by the Issuing Authority that the petitioner had

undertaken the work of regular handling and transportation of food-

grains. The nature of contract executed was a handling and

transportation contract. These certificates do not mention the volume of

food-grains actually transported but they mention the volume of work

handled. This was not the requirement prescribed by Clauses QC 6 and

QC 9 as well as Clauses 11 and 11.1 of the District-Sheet which

prescribed actual transportation of food-grains. Another certificate dated WP 4084-21 11 Judgment

15.04.2021 that has been relied upon also pertains to handling and

transportation work between 04.01.2020 to 13.01.2022. In this

certificate the volume of work 'handled' in Metric Tonnes was shown to be

189016. This certificate however shows the value of the work in handling

and transportation by bifurcating the same. The certificate dated

15.04.2021 though indicates the contract period from 14.01.2020 it refers

to the period till 13.01.2022. The experience of the petitioner after

01.04.2020 is not relevant for the present purpose. Similar is the case

with regard to the second certificate dated 20.04.2021 since it pertains to

the period ending on 01.07.2021. Perusal of the communication dated

12.08.2021 by which the technical bid of the petitioner was found to be

disqualified indicates that the respondent no.1 had stated that the

minimum required experience as prescribed was not possessed by the

petitioner. The certificates furnished by the petitioner indicate experience

in the work of handling and transport while the requirement as per the

request for proposal was experience in transport alone. There is no

bifurcation in the certificates dated 20.04.2021 to indicate the volume of

food-grains transported. Further the experience shown by the certificate

dated 15.04.2021 pertains to the period after 01.04.2020 except the

period of three months prior thereto. Thus on a plain reading of Clauses

QC 6 and QC 9 alongwith Clauses 11 and 11.1 of the District-Sheet, it

becomes clear that the experience certificates submitted by the petitioner

dated 15.04.2021 and 20.04.2021 fall short in indicating the minimum

experience prescribed.

WP 4084-21 12 Judgment

Though the learned counsel for the petitioner sought to contend

that the technical bid was found to be non-responsive since the

respondent no.1 had wrongly taken into consideration the experience

required for both phases when infact it was clarified that experience in

the first phase would be sufficient, the communication dated 12.08.2021

does not indicate that the petitioner's technical bid has been rejected on

that count as urged. That order clearly states that the experience required

in the first phase of transportation was insufficient from the documents

submitted by the petitioner.

10. Thus from the aforesaid, we are satisfied that the Tendering

Authority did not act in an arbitrary or illegal manner when it found that

the petitioner did not have the minimum required experience in

transportation of food-grains as per the experience certificates furnished

by it. No other conclusion than the one recorded by the Tendering

authority on 12.08.2021 can be arrived at. It was urged on behalf of the

petitioner that the rates quoted by the petitioner in the financial bid were

much lower than the rates quoted by the respondent no.2 and therefore

the claim as made by the petitioner ought to be accepted. We do not find

that such course would be permissible especially when the petitioner has

not demonstrated that it was duly qualified to participate in the financial

bid. In Montecarlo Limited Versus National Thermal Power Corporation

Limited [(2016)15 SCC 272] it has been held that merely because the WP 4084-21 13 Judgment

financial bid of a bidder is the lowest the requisite compliance as

demanded by the tender document cannot be ignored.

11. In the light of aforesaid discussion we do not find any reason to

interfere in jurisdiction under Article 226 of the Constitution of India.

The writ petition stands dismissed. Rule stands discharged. No costs.

(SMT. PUSHPA V. GANEDIWALA J.) (A.S. CHANDURKAR, J.)

APTE

Signed By: Digitally signed byROHIT DATTATRAYA APTE Signing Date:21.01.2022 16:43