Bombay High Court
M/S. Gupta Freight Carrier ... vs The State Of Maharashtra And Anr on 10 February, 2023
Bench: Sandeep V. Marne
908 (ii)-8598.2021
jvs
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
SALUNKE
JV
Digitally signed
WRIT PETITION NO. 8598 OF 2021
by SALUNKE J V
Date: 2023.02.13
11:17:59 +0530
WITH
INTERIM APPLICATION NO. 30347 OF 2022
M/s. Gupta Freight Carrier through }
Proprietor Vishal Pannalal Gupta } Petitioner
Versus
The State of Maharashtra & Ors. } Respondents
Mr. S. M. Vaishnav for the petitioner.
Mr. A. A. Kumbhakoni, Senior Advocate with
Mr. P. P. Kakade, Government Pleader,
Mr.Akshay Shinde, 'B' Panel Counsel and
Mr.R. P. Kadam, AGP for State.
CORAM: S. V. GANGAPURWALA, Act.CJ.&
SANDEEP V. MARNE, J.
DATE: FEBRUARY 10, 2023
P.C.:
1. The petitioner had participated in the tender floated by the
respondents for transportation of food-grains under public
distribution system. The petitioner filled the tender for Amravati
district. The petitioner's tender is held non-responsive on the
ground that the earlier contract entered upon between the
petitioner and the Food Corporation of India (for short "FCI") was
terminated and the earnest money was forfeited.
2. The learned counsel for the petitioner strenuously contends
that the ground for rejection of the bid of the petitioner is totally
untenable and does not stand to reason. According to the learned
advocate, the petitioner complies with all the conditions. The FCI
had cancelled the tender of the petitioner only on the ground that
908 (ii)-8598.2021
the petitioner did not furnish the bank guarantee. The learned
advocate submits that immediately upon grant of tender to the
petitioner by the FCI, Covid-19 commenced. It was beyond the
control of the petitioner that the bank guarantee could not be
furnished and solely on the said ground the FCI terminated the
agreement. According to the learned advocate, the same was
challenged by the petitioner. Though the writ petition filed by the
petitioner is dismissed, the petitioner had approached the Apex
Court by filing the special leave petition (SLP) and the same is
pending. The Apex Court, in the said SLP, has observed that the
petitioner, if so desires, may be allowed to participate in the
future tender process, subject to the final orders to be passed in
the matter.
3. The learned advocate for the petitioner submits that the
clause in the tender that a tenderer whose earnest money is
forfeited would not be entitled to participate in the tender process
is illegal and the same may not be considered. The learned
advocate, to buttress his submissions, relies upon a judgment of
the Division Bench of Delhi High Court in the case of Atlanta
Limited vs. Union of India, reported in 2018 SCC OnLine 8269.
According to the learned advocate, the Delhi High Court in the
said case has specifically observed that similar clause stipulated
by the National Highways Authority of India (NHAI) cannot debar
or disqualify the petitioner therein from participating in the other
bids taken out by NHAI. According to the learned advocate,
opportunity deserves to be given to the petitioner to participate in
the tender process.
4. The learned advocate for the petitioner lastly submitted
that clause 5.15 of the Government Resolution dated 15th
January 2021 prescribes that the person whose contract is
terminated for lack of diligent wok is only disqualified.
908 (ii)-8598.2021
5. Mr. Kumbhakoni, learned senior advocate for the
respondents submits that the tender conditions are specific and
patently clear. The disqualifying condition clause 8.3 and sub-
clauses (b) and (c) thereof disentitle the petitioner from
participating in the tender process. The learned senior advocate
relies upon the judgment of the Division Bench of this Court in
Writ Petition (St.) No. 4046 of 2020 (BVG India Ltd. vs. the State
of Maharashtra & Ors.) decided on 19th March 2021.
6. We have considered the submissions canvassed by the
parties. The only ground for disqualification of the petitioner from
participation in the tender process is that the earlier contract
entered into between the petitioner and the FCI, pursuant to the
tender issued by the FCI, is terminated. The security deposit is
forfeited. Clause 8.3 of the tender conditions reads thus: -
8.3. Disqualification Condition.
a) Tenderers who have been blacklisted or otherwise
debarred by the Food, Civil Supplies and Consumer
Protection Department and its district offices or any
department of Central or State Government will be
ineligible during the period of such black listing or for
a period of 5 years from the date of blacklisting/
debarment, whichever is earlier.
b) Any Tenderer whose contract with the Food, Civil
Supplies and Consumer Protection department or its
district offices, or any department of Central or State
Government has been terminated before the expiry of
the contract period at any point of time during last
five years, will be ineligible.
c) Tenderer whose Earnest Money Deposit and/or
Security Deposit has been forfeited by Food, Civil
Supplies and Consumer Protection department or its
district offices, MARKFED, MSCTDC or any
department of Central or State Government during
the last five years, will be ineligible.
d) If the proprietor/any of the partners of the Tenderer
firm/any of the Director of the Tenderer company
have been, at any time, convicted by a court of an
offence and sentenced to imprisonment for a period of
three years of more, such Tenderer will be ineligible.
908 (ii)-8598.2021
e) While considering ineligibility arising out of any of the
above clauses, incurring of any such disqualification
in any capacity whatsoever (even as a proprietor,
partner I another firm, or as director of a company
etc.) will render the Tenderer disqualified.
7. In the present writ petition, it will not be possible to look
into the reasons for termination of the contract in the earlier
proceedings. It is not a case that the present tender is issued by
the same tenderer. The present tender is by a different body.
Clause 8.3 as reproduced supra, more particularly sub-clause (c)
thereof specifically states that the tenderer, whose earnest
money deposit and/or security deposit has been forfeited by Food,
Civil Supplies and Consumer Protection department or its district
offices, MARDFED, MSCTDC or any department of Central or
State Government during the last five years, will be ineligible.
8. The petitioner has not challenged the said term and
condition of the tender. Without any demurer, the petitioner
participated in the tender process. Now, it would be too late in the
day to consider the validity of the said term and condition. The
term as it stands pertaining to the disqualification of the
petitioner disentitles the petitioner from participating in the
tender process. The factual matrix is not disputed. The earnest
money/security deposit of the petitioner has been forfeited and
the contract is terminated.
9. Insofar as the submission of the learned advocate of the
petitioner with regard to clause 5.15 of the Government
Resolution dated 15th January 2021 is concerned, reliance of the
learned advocate on the said clause may not be sufficient to hold
the petitioner eligible in view of the disqualification conditions
mentioned in clause 8.3 of the tender document and as it stands.
10. In light of the above, no relief can be granted to the
petitioner. The writ petition is dismissed. No costs.
908 (ii)-8598.2021
11. In light of the dismissal of the writ petition, the interim
application stands disposed of.
(SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)
