Bombay High Court
Jai Bhavani Mandap And Electrical ... vs The District Collector Parbhani And ... on 13 December, 2023
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2023:BHC-AUG:26235-DB
1 WP / 15187 / 2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 15187 OF 2023
Jai Bhavani Mandap & Electrical Decoration,
Through its Proprietor,
Shri Dnyaneshwar P. Padamgirwar,
Age : 42 years, Occu. : Proprietor,
R/o. New Mondha, Kadhi Mandi,
Parbhani, Tq. and Dist. Parbhani .. Petitioner
Versus
1] The District Collector,
Parbhani
2] The Collector / District Election Officer,
Parbhani, Election Branch,
Parbhani .. Respondents
...
Advocate for petitioner : Mr. D.S. Bagul
AGP for the respondent - State : Mr. K.N. Lokhande
...
CORAM : MANGESH S. PATIL &
NEERAJ P. DHOTE, JJ.
DATE : 13 DECEMBER 2023
ORDER (MANGESH S. PATIL, J.) :
The learned AGP tenders across the bar a communication
received by him from the Deputy Election Officer Parbhani dated
12-12-2023 inter alia informing that in respect of the tender in question,
corrigendum has been issued and notified on the portal on 07-12-2023.
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2. The learned advocate for the petitioner seeks leave to
amend the petition. Leave is granted. Amendment to be carried out
forthwith.
3. Heard. Rule. Rule is made returnable forthwith. Learned
AGP waives service for the respondents. At the joint of the parties, the
matter is heard finally.
4. The petitioner is intending to participate in the tender
process initiated by the respondent no. 2 who is the Collector and the
District Election Officer, Parbhani for erection / supply of pendals,
furniture and necessary items on rent for the ensuing elections of
Member of Parliament and State Legislative Assembly likely to be held
in 2024. Petitioner is assailing clause nos. 9 and 10 of the tender
document. Initially condition no. 9 was to the effect that the bidder
should annex necessary experience certificate of any one year from
the last 7 years duly signed by the competent authority about having
undertaken a similar work and condition no. 10 was to the effect that
the bidder should annex inter alia necessary certificate of the auditor
about the turnover of the last three years, average of which shall be
minimum 60% of the estimated cost, which was declared to be 6 Crore.
5. The communication dated 12-12-2023 tendered by the
learned AGP as mentioned herein-above mentions that a corrigendum
was issued to the original tender notice, on 07-12-2023, whereby the
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original condition no. 9 has been modified to the effect that the
experience of similar two works with the requirements of cost of such
two works to be at least 60% of the estimated cost of Rs. 6 Crores, was
solicited. Condition no. 10 was modified to the effect that instead of
60%, average of the turnover for the last three years to be certified by
the auditor was expected to be at least more than 40% of the estimated
cost of the present work i.e. Rs. 6 Crores.
6. The learned advocate Mr. Bagul would take us through
similar tenders floated in various other districts to buttress his
submission that no such stringent conditions have been incorporated in
those districts, namely, Beed, Latur, Dharashiv, Hingoli, Nanded and
Pune. He would submit that if the Collectors of these districts who are
also the District Election Officers of their respective districts, as is the
respondent no. 2 of Parbhani district, have put up reasonable
conditions, the conditions in the present tender are harsh and stringent.
Those have been objectively incorporated to weed out petitioner and
similar individuals and with a view to benefit one Sahyog Seva
Mandap.
7. Mr. Bagul would submit that since it is a matter of public
money, the petitioner and similar such establishments are entitled to
participate and care should have been taken to resort to tender
process wherein there would be maximum participation which would
4 WP / 15187 / 2023
save public money. Imposition of such stringent conditions is aimed at
reducing the competition and favouring an individual establishment. In
consonance with what has happened in other districts, the request was
made for relaxing the conditions no. 9 and 10 but not to any avail. The
respondent no. 2 is adamant in going ahead with the tender process
with stringent conditions. It would be detrimental to the level playing
field expected to be followed as laid down in the matter of Reliance
Energy Ltd. and another Vs. Maharashtra State Road
Development Corporation Ltd.; (2007) 8 SCC 1. He would also rely
upon the decision of this Court in the matters of M/s. K.K. Vidyut,
Ahmednagar Vs. The Union of India and others (writ petition no.
10696 of 2014) and connected matters, wherein this Court had
resorted to comparison in respect of a similar contract pursuant to the
tender process undertaken by the BSNL. By referring to the Reliance
Energy Ltd. (supra), the concept of level playing field was also
resorted to. Mr. Bagul would also place reliance on the decision of
Vaishnorani Mahila Bachat Gat Vs. The State of Maharashtra and
others; (2019) 15 SCC 718. He would submit that this Court should
step in and issue directions for relaxation of conditions no. 9 and 10.
8. Per contra, the learned AGP would submit that this Court
cannot prevail over the discretion vested with the respondent no. 2. He
has applied his mind and has exercised the discretion in incorporating
5 WP / 15187 / 2023
the conditions which cannot be a subject matter of judicial review.
There is no concrete evidence about the conditions having been
incorporated to obviate any competition or to deprive the petitioner an
opportunity of participation or to favour anybody even though name of
Sahyog Seva Mandap has been incorporated in the petition by way of
modification, in handwriting, in the memo of the petition.
9. He would advert our attention to similar clauses in respect
of the tender notice published in Latur district. He would submit that
against the estimated cost of Rs. 5 Crores, condition no. 10 requires
the average turnover for the last three years to be minimum of 35% of
Rs. 5 Crores. He would submit that every Collector cum District
Election Officer is entitled to incorporate appropriate condition
according to his discretion. There are no parameters laid down by the
Election Commission. There is bound to be some variance in every
district in respect of the terms and conditions. No inference can be
drawn merely on the basis of and pointing out the variance. It cannot
be a subject matter of judicial review.
10. We have considered the rival submissions and perused
the papers.
11. At the outset, it is necessary to note that though the
petitioner has been demonstrating as to how the impugned conditions
6 WP / 15187 / 2023
are more stringent than the ones from the tender notices issued in
many other districts, in our considered view, when the District Election
Officer has been authorized to float the tender process in respect of his
own district, in the absence of any mandate or direction by the
superiors or the election authority, there is bound to be some variance
in every respect.
12. It is trite that as laid down in the matter of N.G. Projects
Ltd. v. Vinod Kumar Jain; (2022) 6 SCC 127, appropriateness of a
particular term or condition in the tender notice cannot be a subject
matter of judicial review. It is the discretion of the employer as to which
conditions to be incorporated and would suit its purpose. The relevant
observations from the N.G. Projects (supra) are as under:-
"23. In view of the above judgments of this Court, the writ court
should refrain itself from imposing its decision over the decision of
the employer as to whether or not to accept the bid of a tenderer.
The Court does not have the expertise to examine the terms and
conditions of the present day economic activities of the State and
this limitation should be kept in view. Courts should be even more
reluctant in interfering with contracts involving technical issues as
there is a requirement of the necessary expertise to adjudicate
upon such issues. The approach of the Court should be not to find
fault with magnifying glass in its hands, rather the Court should
examine as to whether the decision-making process is after
complying with the procedure contemplated by the tender
conditions. If the Court finds that there is total arbitrariness or that
the tender has been granted in a mala fide manner, still the Court
should refrain from interfering in the grant of tender but instead
relegate the parties to seek damages for the wrongful exclusion
rather than to injunct the execution of the contract. The injunction
or interference in the tender leads to additional costs on the State
and is also against public interest. Therefore, the State and its
citizens suffer twice, firstly by paying escalation costs and
secondly, by being deprived of the infrastructure for which the
present day Governments are expected to work. "
7 WP / 15187 / 2023
13. We are precisely pointing out the afore-mentioned
observations from N.G. Projects (supra) as the petitioner has been
relying upon the decision in the matter of K.K. Vidyut (supra) of a
Division Bench of this Court which was decided on 29-01-2015 when
the N.G. Projects' decision was not holding the field. Be that as it may,
appropriateness of a particular term or condition would be in the
exclusive domain of the employer and unless there is sufficient and
cogent reason and material to demonstrate that the conditions have
been incorporated with some ulterior motive to favour someone, the
Courts cannot undertake a judicial review. The Courts have been put
on guard even when there is some arbitrariness and even the tender is
allotted in a mala fide manner. Merely because the petitioner is finding
it inconvenient, there could be no challenge to the terms and conditions
which would be applicable to every bidder equally.
14. In the matter of Reliance Energy Ltd. (supra), the issue
was in respect of accounting treatment to be given to non-cash
expenses while applying the methodology for ascertaining net cash
profit (NCP) of 200 Crores, to demonstrate the financial condition of the
bidder as per the tender condition no. 7.2.2. The principle of 'level
playing field' laid down therein will have to be understood in the context
in which it was invoked in paragraph no. 36.
8 WP / 15187 / 2023
15. Here is a case where the petitioner is objecting to the two
conditions of the tender notice which would operate equally to all the
bidders. Therefore, the petitioner is not entitled to derive any benefit
from the decision in the matter of Reliance Energy Ltd. (supra). As far
as Vaishnorani Mahila Bachat Gat (supra) is concerned, it was a
tender floated for supply of supplemental nutrition under the
Incorporated Child Development Scheme and Supplementary
Nutritional Program undertaken under the National Food and Safety
Act, 2013, contrary to the directions of the PUCL matter (2004) 12
SCC 104. It was found that the tender conditions were arbitrary and
illegal. It was found that the notice inviting tender was not in the spirit
of the orders passed by the Court and in the light of the peculiar
circumstances discussed therein, the conditions were held to be
arbitrary. It was noticed that the conditions were inconsistent with the
Central government guidelines of involvement of self help groups in
supply of take home ration and de-centralization of ICDS (Integrated
Child Development Scheme) and supplemental nutritional program with
the help of self help groups and non involvement of contractors. Since
the matter in hand is regarding supply of pendal, furniture etc. for the
ensuing elections, the petitioner is not entitled to bank upon the
decision in the matter of Vaishnorani Mahila Bachat Gat (supra).
9 WP / 15187 / 2023
16. Considering the above state-of-affairs, we do not find any
arbitrariness or unreasonableness in the impugned two conditions of
the tender notice floated by the respondent no. 2.
17. The petition is dismissed.
18. Rule is discharged.
[ NEERAJ P. DHOTE ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
