Bombay High Court
M/S Pruthviraj Construction Through ... vs The State Of Maharashtra Through The ... on 19 December, 2023
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2023:BHC-AUG:26821-DB
1 WP11284.2023&Anr.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO. 11284 OF 2023
M/s. Pruthviraj Construction,
Through its Proprietor
Vitthalrao s/o Dnyanoba Mule,
Age : 60 years, Occu. Contractor,
R/o. Dawangaon, Tq. Udgir,
Dist. Latur. ....Petitioner
Versus
1. The State of Maharashtra,
Through the Secretary,
Urban Development Department,
Mantralaya, Mumbai.
2. The Sub-Divisional Officer,
Udgir, Tq. Udgir, Dist. Latur.
3. The Chief Officer,
Municipal Council, Udgir,
Tq. Udgir, Dist. Latur.
4. Ashish Gopalrao Hangarge,
Age : 35 years, Occu. Contractor,
R/o. Nayi Abadi, Near Brahmkumari Temple,
Udgir, Tq. Udgir, Dist. Latur. ....Respondents
AND
WRIT PETITION NO. 11289 OF 2023
M/s. Priyadarshini Construction,
Through its Proprietor
Taher Husain s/o Mainoddin Sayyed,
Age : 50 years, Occu. Contractor,
R/o. Nanded Road, Musa Nagar,
Behind Sanskar School,
Udgir. Tq. Udgir, Dist. Latur. ....Petitioner
Versus
1. The State of Maharashtra,
Through the Secretary,
Urban Development Department,
Mantralaya, Mumbai.
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2. The Sub-Divisional Officer,
Udgir, Tq. Udgir, Dist. Latur.
3. The Chief Officer,
Municipal Council, Udgir,
Tq. Udgir, Dist. Latur.
4. Ashish Gopalrao Hangarge,
Age : 35 years, Occu. Contractor,
R/o. Nayi Abadi, Near Brahmkumari Temple,
Udgir, Tq. Udgir, Dist. Latur. ....Respondents
.........
In both petitions :
Mr. T. M. Venjane - Advocaet for the Petitioner
Mr. S. V. Hange - AGP for respondent nos. 1 and 2
Mr. Parag V. Barde - Advocate for respondent no. 3
Mr. D. P. Palodkar h/f Mr. U.L. Momale - Advocate for respondent no. 4
.........
CORAM : MANGESH S. PATIL
AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : 13 DECEMBER 2023
PRONOUNCED ON : 19 DECEMBER 2023
JUDGMENT [ Per : Neeraj P. Dhote, J. ] : -
1. Rule. Rule made returnable forthwith. Heard finally with
the consent of the parties and taken up for final disposal at the stage
of admission. Perused the papers.
2. Since the issue involved in both the petitions being
similar, both of them are heard together and are being decided by this
common judgment.
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3. Respondent No. 3 - Municipal Council, Udgir (hereinafter
referred to as 'Municipal Council') floated two (2) e-tender notices
dated 28.07.2023 for construction of cement concrete roads, nullah
and different developmental works under 'Lokshahir Annabhau Sathe
Nagri Anusuchit Jati and Navbodhdha Vasti Sudhar Yojana' and
'Vaishyashtyapurna Yojana', respectively. The Petitioners are the
proprietory concerns in the field of construction, responded to the
said e-tender notice. Following is the brief description of the works.
Sr. Scheme Estimated cost
No. (in lakh)
1. Lokshahir Annabhau Sathe Nagri Anusuchit Jati and Rs. 09,34,702/-
Navbodhdha Vasti Sudhar Yojana
(W.P. No. 11284/2023)
2. Vaishyashtyapurna Yojana (W.P. No. 11289/2023) Rs. 1,22,17,675/-
4. The Petitioners submitted their offers in both these
tenders. The Municipal Council carried out further proceeding in the
tender notice as per schedule. The Petitioners received the message
on their mobile phone that the bid was not qualified. Feeling
aggrieved, the Petitioner has approached this Court by filing the
present petitions under Article 226 of the Constitution of India,
seeking directions to the Municipal Council, Udgir, to qualify them in
the technical bid and further permit them to participate in the
financial bid for the works. During pendency of these petitions, the
Petitioners were permitted to amend the petitions to add the
successful bidder as respondent no. 4 and to amend the prayer clause
for cancelling the work order issued by the Municipal Council in his
favour.
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5. It is submitted by the learned advocate for the Petitioners
that the Municipal Council has not given any notice to the Petitioners
as specified in Government Resolutions dated 29.01.2019, 07.03.2019
and 17.09.2019 which provide that, in case of any doubt, explanation
be called from the Contractor and in case of incomplete information,
same be called from the Contractor within the specified period. It is
submitted that the proposals of the Petitioners came to be turned
down only to favour some Contractors. It is submitted that the
Petitioners proposal was complete in all respect and clause no. 20 of
the e-tender notice provides the window, in case of any difficulty
during the technical evaluation for the Contractor to respond to the
communication within the specified time or else he will be disqualified
from the process. He submitted that in this view of the matter, the
petitions be allowed.
6. Respondent no. 3 - Municipal Council filed affidavit-in-
reply opposing the petitions. It is contended that during the process
of the said e-tender notice, bids were opened on 18.08.2023 and after
the scrutiny, it was uploaded. It is contended that the petitioners
were technically found unfit for the tenders and therefore the bids of
other three tenderers were considered who had offered the lowest
costs. It is further contended that the work order has been issued in
favour of the successful bidder after executing the contract. It is
contended that having lost the contract, the Petitioners have come up
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with an afterthought contentions. It is further contended that after
18.08.2023 i.e. from the opening of the tenders, the Petitioners never
contacted. The other contentions of the Petitioners are denied. It is
submitted by the advocate for the respondent - Municipal Council
that the Petitions have no merits and be dismissed.
7. It is submitted by the learned advocate for respondent
no. 4, who is a successful bidder, that respondent no. 4 has been
awarded the contracts after following the due procedure and since
the Petitioners did not qualify for the same, they have challenged the
e-tender notices.
8. The law in respect of Judicial review in the tender matters
is well settled by catena of judgments. From the respondents side,
reference is made to the recent judgment of the Hon'ble Supreme
Court in the case of Tata Motors Limited Versus Brihan Mumbai
Electric Supply and Transport Undertaking (BEST) and others
reported in 2023 AIR (SC) 2717; 2023 DGLS(SC) 598. Perusal of the
judgment would show that it was in respect of a tender floated by
BEST for supply, operation and maintenance of the electric buses. It is
held "this Court has cautioned time and again that courts should
exercise a lot of restraint while exercising their powers of judicial review
in contractual or commercial matters. This Court is normally loathe to
interfere in contractual matters unless a clear-cut case of arbitrariness
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or mala fides or bias or irrationality is made out. One must remember
that today many public sector undertakings compete with the private
industry."
8.1. It is further observed, "the courts must realise their
limitations and the havoc which needless interference in commercial
matters can cause. 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 will cause
unnecessary loss to the public exchequer."
8.2. It is also observed "ordinarily, a 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 unless something very
gross or palpable is pointed out. The court ordinarily should not interfere
in matters relating to tender or contract. To set at naught the entire
tender process at the stage when the contract is well underway, would
not be in public interest".
8.3. It is further observed, "even when some defect is found in
the decision-making process, the court must exercise its discretionary
powers under Article 226 with great caution and should exercise it only
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in furtherance of public interest and not merely on the making out of a
legal point. The court should always keep the larger public interest in
mind in order to decide whether its intervention is called for or not. Only
when it comes to a conclusion that overwhelming public interest
requires interference, the court should interfere".
8.4. By referring to the judgment in the case of Jagdish
Mandal v. State of Orissa and others, reported in (2007) 14 SCC 517,
it was further held "while invoking power of judicial review in matters
as to tenders or award of contracts, certain special features should be
borne in mind that evaluations of tenders and awarding of contracts are
essentially commercial functions and principles of equity and natural
justice stay at a distance in such matters" and further observed, "if the
decision relating to award of contract is bona fide and is in public
interest, courts will not interfere by exercising powers of judicial
review even if a procedural aberration or error in assessment or
prejudice to a tenderer, is made out".
9. Coming to the case in hand it is clear from the e-tender
notice that all the necessary details were mentioned therein
including the dates for submission and the date of opening etc. It
also contains the terms and conditions of the process. No doubt,
the Petitioner had responded to the respective tender notices and
was intimated by a message that technical bids were opened and
they were not qualified.
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10. During hearing, the learned advocate for the Municipal
Council placed on record a chart showing the deficiencies in the
Petitioner's bid. It shows that in case of Petitioners E.P.F.
registration certificate and challan of last six months, Jio tag photo
and certificate were not enclosed. The advocate for the Petitioners
tendered on record the copies of the documents i.e. declaration /
authority letter for site visit and Jio tagging certificate with the
contention that those documents were also submitted with the
tender. Along with the reply, the Municipal Council has placed on
record the copy of the technical bid evaluation sheets. Perusal of
the same show that the Petitioner's bid was lacking E.P.F.
registration certificate and challan of last six months, the document
in respect of quantity executed and the annexures as mandated
and, therefore, he could not qualify the technical evaluation.
11. The copies of documents, which according to the
Petitioner have been submitted in the process, show that it is the
declaration / authority letter for site visit and jio tagging certificate.
Even accepting this for the sake of argument, the technical
evaluation sheet shows the deficiency on more than one count.
12. In both the petitions, it is nowhere the case of the
Petitioners that the technical bids were rejected to favour a
particular person / contractor. A vague statement is made in ground
no. iii of the Petitions that the Respondent - authorities only to
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favour some contractors, rejected the same without assigning any
reason. This general statement is nothing but a hollow contention
without any supporting material.
13. It is only when the contract is awarded to successful
bidder, the Respondent No. 4 came to be added in the petition
being the person who is awarded the said contract. It becomes
clear from the reply of the Municipal Council that as the respondent
No. 4 was eligible and had offered lowest rates, the work orders
were issued in his favour.
14. Taking the case as it is, we are of the considered view
that the e-tender process in question does not warrant any
interference at the hands of this Court under Article 226 of the
Constitution of India, keeping in view the settled position of law in
respect of matters relating to the tenders. Hence, we proceed to
pass the following order :
ORDER
[i] The Writ Petitions are dismissed with no order as to costs.
[ii] Rule is discharged.
[NEERAJ P. DHOTE] [MANGESH S. PATIL]
JUDGE JUDGE
1. After pronouncement of the judgment, the learned
advocate for the Petitioners submits that since the interim order has
been operating till today, it be extended for a reasonable time.
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2. Considering the view we have taken coupled with the fact
that the interim relief was only to the effect that any work carried out
pursuant to the impugned tender process would be subject to the
final outcome of the writ petitions, the request for extension of the
interim relief is rejected.
[NEERAJ P. DHOTE] [MANGESH S. PATIL]
JUDGE JUDGE
SG Punde
Signed by: Sandeep Gulabrao Punde
Designation: PS To Honourable Judge
Date: 20/12/2023 14:08:54
