Shrikrishna Vijatantri ... vs Maharashtra State Electricity ...
2023 Latest Caselaw 1276 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                       CIVIL WRIT PETITION NO. 11109 OF 2022

1.            Shrikrishna Vijatantri Apprenticeship Sushikshit
              Berojagar Seva Sahakari Sanstha M. Jalna
              Near Ganpati Netralaya, District Jalna, through
              its Secretary, Mr. Sureshsingh Laxmansingh Rajput
2.            Vidhyut Mandal Maji App. S.B.S.S. Ltd.
              C/o Hiwarkheda Road, Bholeshwar Colony,
              Opp. Girija Mangal Karyalaya, Kannad - 431 103
              District Aurangabad, through its authorized
              signatory Mr Pradip S/o. Bhaiyyasaheb Deshmukh
3.            Nexus Multi Services Corporation
              A Proprietorship firm, through its proprietor
              Through its Authorised Signatory
              Mr. Omprakash S/o. Prasad Singh, having his
              office at 13, Muthiyan Corner, Peer Bazaar Road,
              Dashmesh Nagar, Aurangabad - 431 005.            ...Petitioners

              Versus

1.            Maharashtra State Electricity Distribution Co. Ltd.,
              Through its Superintendent Engineer,
              Circle office Aurangabad Rural
              District Aurangabad
2.            Maharashtra State Electricity Distribution Co. Ltd.
              Through its Joint Managing Director, Regional
              Office Aurangabad, Taluka and
              District Aurangabad                               ...Respondents

Mr Amit A. Yadkikar, Advocate for Petitioners
Mr S.V. Munde, Advocate for Respondent Nos. 1 and 2
Mr A.R. Syed, Advocate for intervenor

                               CORAM         :   MANGESH S. PATIL AND
                                                 S.G. CHAPALGAONKAR, JJ.

RESERVED ON : 27-01-2023 PRONOUNCED ON : 07-02-2023

JUDGMENT : ( PER S.G. CHAPALGAONKAR, J. )

1. The petitioners have approached this Court under Article 226 of

the Constitution of India praying for issuing writ against respondent No.1 /

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Maharashtra State Electricity Distribution Co. Ltd., (hereinafter referred to

as " the MSEDCL" for the sake of brevity).

2. The petitioners have prayed as under :-

(b) By issuing a writ of Mandamus or in the nature of Mandamus or any other suitable writ, direction or order the Respondent No.01 may kindly be directed to not conduct any further lottery draw with respect to Tender No. SE/ARC/HR/T-01/2022-23; Tender No.SE/ ARC/HR/T-02/2022-23; Tender No. SE/ARC/HR/T-

03/2022-23 and Tender No. SE/ARC/HR/T-04/2022-23.

(c) By issuing a writ of Mandamus or in the nature of Mandamus or any other suitable writ, direction or order the Respondent No.01 may kindly be directed to issue letters of award in accordance with the lottery draw drawn on 13th September, 2022.

3. The petitioners Nos. 1 and 2 (registered co-operative societies)

and petitioner No. 3 (partnership firm) have experience of execution of

various contracts with respondents for supply of manpower. The

respondent No. 1 floated four tenders under tender notice dated

14-06-2022. Petitioners submitted their bids. The details of the tenders are

as under:-

(i) Tender No. SE/ARC/T-01/2022-23; for supply of outsourced technicians under Aurangabad Rural Division No.1.

(ii) Tender No. SE/ARC/T-02/2022-23; for supply of outsourced technicians under Aurangabad Rural Division No. 2.

(iii) Tender No. SE/ARC/T-03/2022-23; for supply of outsourced technicians under Kannad Division.

(iv) Tender No. SE/ARC/T-04/2022-23; for supply of outsourced technicians under Sillod Division.

4. Petitioners contend that around 7 bidders for each tender have

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been declared qualified in the technical bid. However, all of them have

quoted similar financial bids. The respondent No. 2 had issued a circular

dated 27-04-2022 to deal with such contingency, whereby it is directed

that the work orders to be issued to the participants of the tender process

on the basis of a lottery draw. It is further clarified that, if total number of

outsourced electrical assistants is less than 100, then a single bidder

should be selected by lottery draw and if such number is more than 100,

two bidders shall be selected and awarded work equally.

5. On 13th September 2022, the respondent No.1 issued a

communication through e-mail to the participants/bidders inviting them for

draw of lottery organized in his office at Chikalthana MIDC, Aurangabad.

The lottery draw was conducted by the respondent No.1 at 6.00 p.m. The

process has been video graphed. The petitioners are lucky winners of the

draw as against the work Nos. 2, 3 and 4. According to the petitioners,

since they are selected by the lucky draw, they were entitled for the letter

of award.

6. It is further contention of the petitioners that on 2 nd October,

2022, the respondent No.1 issued e-mail informing that the re-lottery is

organized in the office of respondent No.1 at 10.00 a.m. on 04-10-2022.

The petitioners raised the objection to said communication and pointed out

that already they have been declared successful in the lucky draw dated

13-09-2022, and there is no reason for further re-lottery. The petitioners

were shocked to receive further communication stating that lottery

organized on 04-11-2022 at 4.00 p.m. is preponed to 03-11-2022 at 17.30

hours.

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7. The respondent Nos. 1 and 2 filed affidavit-in-reply contending

that the respondent No.1 had received complaints from the qualified

bidders, objecting to the process conducted on 13-09-2022. According to

bidders, sufficient time was not provided to them for attending the lottery. It

has been conducted behind their back. Their offices are stations 100 to

300 Km from the office of respondent No.1. Sufficient time ought to have

been given to the qualified bidders to attend the lottery with a view to

maintain transparency.

8. It is further contended that respondent No.1 received a

communication dated 28-09-2022 from the General Manager (Finance and

Accounts) informing that the Director, MSEDCL has instructed to conduct

re-lottery for tender Nos. 1 to 4 with a view to maintain image of MSEDCL

and to avoid the litigation. It was instructed that the bidders shall be

intimated regarding the lottery process at least one day in advance and

entire process shall be video recorded. In this background, the re-lottery

has been arranged under the impugned communication dated 02-11-2022

and the bidders were invited to attend the process on 03-11-2022 at

around 17.30 hours. It is the contention of the respondents that the

administrative decision has been taken to maintain the transparency. No

mala fides are attributed against the respondents and the petitioners are

also entitled to participate in the re-lottery along with the other bidders and

have an equal opportunity of allotment of work under the tender.

9. We have heard the learned advocate appearing for the

respective parties. We have permitted the learned advocate for applicants/

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intervenors in Civil Application No. 990/2023 to make his submission,

since the applicants/intervenors are participants of the same tender.

10. Mr Amit Yadkikar, learned counsel appearing for the petitioners

would submit that the petitioners are experienced contractors. They have

successfully executed the contracts for supply of manpower to respondent

No.1. They have participated in the tender process in pursuance of the

tender notice issued by the respondent No.1. They have submitted their

respective bids. They were found successful in technical bids. Thereafter,

financial bids were opened. Since, the bids of all participating contractors

were for same value, respondent No.1 as per procedure prescribed under

circular dated 27-04-2022 invited them for lottery. The petitioners were

found successful. The entire process of lottery has been video-graphed.

There is nothing to show that the lottery was vulnerable to alleged mala

fides or foul play. It was for the respondents to act upon result of lottery

and issue award letter to the petitioners. However, the re-lottery has been

directed without justifiable reason.

11. The learned advocate Mr Sanjay Mundhe appearing for

respondent Nos. 1 to 4 would submit that large number of participants

could not attend the lottery because of the paucity of time. The

communications were issued to all the bidders through e-mail. However,

sufficient time gap was not provided for attending the lottery. The majority

of the participants could not attend the lottery. They have raised the

objections vindicating their grievance through representations made to the

respondent authorities and requested for re-lottery. The respondents have

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taken administrative decision to maintain the transparency and sanctity of

the procedure of the lottery prescribed under the circular. He would submit

that in absence of any mala fides, the petitioners have no cause of action

to challenge the decision of the re-lottery. He would submit that no right

has been accrued to the petitioners. The respondents have reserved the

right to withdraw from the process from any point of time under specific

clause. However, only the re-lottery has been directed with intention to

provide opportunity to all the successful participating bidders who have

crossed the technical as well as financial bids. The petitioners have no

reason to raise any grievance since they would be getting fair opportunity

in the re-lottery. Mr Mundhe would further point out that, the petitioner No.

2 under his communication had raised the objection complaining that

sufficient time was not provided to attend the lottery. However, after

finding himself as lucky winner, he is challenging the decision of the

respondent authorities. Mr Syed, learned advocate appearing for the

intervenors supported the stand taken by the respondents and submitted

that the re-lottery is necessary in the facts and circumstances of the case.

12. It is not in dispute that the petitioners as well as the other

contractors have participated in the tender process. Almost 8 bidders

passed the technical bid. On opening of the financial bids, the value of the

bid work was found equal from all the bidders. The respondent No. 2 has

evolved the method of lottery system under the circular dated 27-04-2022.

It prescribes modalities for organizing lottery in the situations of the tie

among the bidders. It appears that the respondents were required to resort

to the lottery since similar bids were received and there was no other way

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but to go for the lottery. It is pertinent to note here that the parties are ad

idem so far as the lottery system is concerned, though it is not provided

under the tender notice.

13. The petitioners had received the e-mail on 13-09-2022 inviting

them to attend the lottery arranged at the office of respondent No.1 at 6.00

p.m. It shows that e-mail was delivered to the petitioner No.1 at about 2.00

pm. As such, the time gap of less than two hours was provided. The same

is the case in respect of other bidders. However, with this short notice, the

lottery was conducted and the result of such lottery was declared in which

the petitioners were shown to be winners for the respective works. Perusal

of the communication dated 22-09-2022 shows that in response to the e-

mail dated 13-09-2022, the representatives of M/s Nexus Multi Services,

Aurangabad, M/s G.A. Digital Web World Pvt. Ltd., M/s Sonu Services,

Solapur were present. The four successful bidders were identified through

the lottery. However, 8 participants of the tender objected to the decision

for want of transparency and fundamental defects in the procedure

adopted by the respondents. The objections are favourably considered by

the respondents and impugned directions are issued for re-lottery.

14. After considering the aforesaid factual aspects of the matter, we

find that the tendering authority had valid reason to direct re-lottery. It is

trite that the public authority which is issuing tender is required to follow

the principles of fairness and has to maintain transparency during the

process. The bidder must have opportunity to participate at all important

steps of tender process. If the respondents were to adopt the lottery

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system, it was expected that all the bidders were given sufficient

opportunity to participate in the process and get the satisfaction of the

transparent and fair procedure that was to be adopted by the authority.

15. In the present case, the bidders from Ambajogai, Solapur,

Beed etc., having their offices at the distance of 125 to 300 Kms. They

couldn't attend lottery due to short notice. Ideally one must get advance

notice of 24 hours. The respondent authority while issuing communication

regarding holding of lottery, failed to provide sufficient time to the bidders

so that they could attend the lottery. The bidders who could not attend the

lottery because of paucity of time, have raised their grievances. The good-

sense prevailed over the respondent and they have taken the decision of

re-lottery. Such decision cannot be termed as arbitrary only because the

petitioners were found to be successful in the earlier lottery which was

sans fair play. Even otherwise, only because the petitioners were

successful in the lottery, no vested right for allotment of tender has been

created in their favour. The petitioners could not demonstrate any mala

fides in the action of re-lottery proposed by the respondents. The

petitioners would also be getting an opportunity to participate in re-lottery

and have chance of allotment of work along with other bidders.

16. It is trite that in the matter of administrative decisions, the courts

are not expected to substitute its own opinion. As observed by the

Supreme Court in the matter of N.G. Projects Limited Vs. Vinod Kumar

Jain and Others reported in 2022 (6) SCC 127, a fair play in the joints is

a necessary concomitant for an administrative body functioning in an

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administrative sphere or quasi-administrative sphere. However, the

decision must not only be tested by the application of Wednesbury

principle of reasonableness but must be free from arbitrariness not

affected by bias or actuated by mala fides. In the present case, we do not

find any material to infer mala fides in the administrative decision or

arbitrariness in impugned action on the part of the respondent authorities.

17. The upshot of the discussion above leads us to conclude that

the petition is devoid of merits.

18. Hence, the writ petition is dismissed with no order as to costs.

 [ S.G. CHAPALGAONKAR, J. ]                      [ MANGESH S. PATIL, J. ]




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