M/S. Patil Transport Service Thr. ... vs The State Of Maharashtra Thr. ...
2023 Latest Caselaw 1589 Bom

                                                                    46.6518.21-wp

BASAVRAJ                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
GURAPPA                                 CIVIL APPELLATE JURISDICTION
PATIL
Digitally signed by                    WRIT PETITION NO.6518 OF 2021
BASAVRAJ GURAPPA                                   WITH
PATIL
Date: 2023.02.16                  INTERIM APPLICATION (ST) NO.3899 OF 2023
17:41:48 +0530
                                                    IN
                                       WRIT PETITION NO.6518 OF 2021


                      M/s. Patil Transport Service                  ..... Petitioner

                            Vs.

                      The State of Maharashtra & Ors.               ..... Respondents


                      Mr. Girish Godbole a/w. Mr. Akshay Petkar, Aniketh Malu and
                      Mr. Pranav Shah for the Petitioner
                      Mr. A. A. Kumbhakoni, Senior Advocate a/w. Mr. P. P. Kakade, GP,
                      Mr. Akshay Shinde, "B" Panel Counsel with Mr. R. P. Kadam, AGP for
                      the State


                                             CORAM:     S.V.GANGAPURWALA, ACJ &
                                                        SANDEEP V. MARNE, J.

RESERVED ON : FEBRUARY 8, 2023 PRONOUNCED ON : FEBRUARY 16, 2023

ORDER: (PER ACTING CHIEF JUSTICE)

1. The Respondent No.1 floated a tender for appointment of

transporters for transporting food-grains and other essentials to Fair

Price Shops (for short the "FPSs") . The Petitioner is held ineligible

on account of insufficient experience.

2. Mr. Godbole, the learned Counsel for the Petitioner submits that

the Government Resolution dated 15th January 2021 and the request

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of proposal specifies the eligibility criteria for tender / bid process for

appointment of transporters. It is specified that the bidder should

have experience of transportation of 33% of the Government food-

grains transported in the preceding 3 years. According the learned

Counsel, the information sheet uploaded on the web portal of

Respondent No.1 contains erroneous quantities for the transport of

food-grains in last three years. In the pre-bid meet the Petitioner

indicated that the information sheet published along with the Retail

Fair Price (for short "RFP") for Nasik District contains wrong and

erroneous numbers i.e. the quantity of the food-grains transported

during the preceding three years. On or about 2nd June 2021 the

District Supply Officer provided revised and correct information

sheet for appointment of transporters for transporting food-grains

and other essentials for the FPSs in Nasik District. The Respondent

No.1 uploaded the revised information sheet for Nasik District which

still contained erroneous quantities. The learned Counsel for the

Petitioner submits that in Nasik District, the quantity of

transportation of food-grains in the Stage-I and the Stage-II cannot be

the same. The Respondents erroneously calculated the same as

2,15,171 MT for Stage-I and Stage-II. The learned Counsel submits

that in Nasik Municipal Corporation area there was direct

transportation which is included in Stage-I. The transportation

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volume in Stage-I has to be more than Stage-II. The same principle

will apply in four other Districts viz. Nasik, Solapur, Nagpur and

Aurangabad. Consequently, Clause 11 and 11.1 of the Sheet showing

the details of quantity of food-grains transported so also of Stage-I and

Stage-II is incorrect. In the revised list the same was correctly shown

by the DSO Nasik. That was provided on 2nd June 2021. The same

was issued by the DSO pursuant to the directions of the Government.

The experience certificate issued to the Petitioner would categorically

demonstrate that the Petitioner has the necessary experience of

transportation of food-grains of the quantity indicated in Stage-I and

Stage-II.

3. Mr. Godoble, the learned Advocate further submits that the

impugned order holding the Petitioner disqualified, is a non-speaking

one and is sought to be supported by the affidavit, which is not

permissible. Clause 5.1 of the Government Resolution requires the

actual quantum of goods transported to be the basis whereas the

Government has taken a wrong figure of 6,52,032 MT which is not the

actual quantum transported but is the quantum for which contracts

were awarded. Actual figure is 6,20,167.53 MT. The learned Counsel

submits that even if the case of the Respondents is accepted, still the

Petitioner fulfills the criteria in Stage-I for the financial year 2018-

2019 and 2019-2020. Reliance is placed on the judgment of the

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Division Bench of this Court at Aurangabad in the case of Shalimar

Transport and Catering Contractor Vs. Government of Maharashtra

and Ors. in Writ Petition No.9279 of 2021 delivered on 13 th October

2021. The learned Counsel further submits that the impugned order

is absurd and irrational since it was the Petitioner who was alone

awarded the work of transportation for the entire Nasik District for

the financial year 2018-2019 and 2019-2020. The Petitioner could

not have been disqualified. The Government has taken a wrong figure

of Niyatan which means the amount for which the contract was

awarded instead of taking the figure of goods actually transported,

which is correct criteria of 5.1 read with clause 1.1 and 1.2 of the

Government Resolution so also clause 6.1 of the RPF. In fact, for

Nagpur District, the same correct method is applied.

4. Mr. Kumbhakoni, the learned Senior Advocate for the

Respondents supports the order and submits that according to the

District Sheet and the information from the DSO Nasik, the food-

grains transported in the last three years in the Nasik District is

6,52,032 MT and 33% of the said figure comes to 2,15,171 MT.

Thereafter RFP document was published on 21st May 2021. The DSO

Nasik, under letter dated 2nd June 2021 submitted the amended

information. Bare perusal of the said information would reveal that

at Sr.No.8 the DSO has mentioned that the total food-grains

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transported in last three years in the Nasik District is 6,97,654 MT.

In column No.11 and 11.1 of the said document, the DSO has

mentioned figure as 1,98,992 MT and 1,81,992 MT being 33% of the

total transportation that has taken place in Nasik District for last

three years in Stage-I and Stage-II transportation. However, if one

calculates 33% of the figure mentioned in column 8 i.e. 6,97,654 MT,

same comes to 2,30,226 MT but the DSO has stated the figures

1,98,992 MT and 1,81,992 MT in columns 11 and 11.1, respectively

which is apparently not correct. As there was a mistake in the said

District Sheet, the Respondents relied upon the District Sheet which

was submitted by the DSO on 4th March 2021 while considering the

technical bids. The Petitioner was rightly disqualified.

5 Certificate of the Petitioner would reveal that the Petitioner has

transported the food-grains in both the stages i.e. Stage-I and Stage-

II. The State Government has framed its policy in the form of

Government Resolution dated 15th January 2021 and the tender is

issued in terms of the said Government policy.

6 We have considered the submissions canvassed by the learned

Counsel for the parties. The only dispute is about the eligibility of the

Petitioner vis-a-vis transport of the required quantity of food-grains.

The District Sheet that was published along with RFP shows the

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following figures:

v- Okkgrqd da=kV fufonk izfdz;slkBh [email protected] Ukf'kd dz- ekfgrh 7 ftYg;karxZr ifgY;k VIik o FksV okgrqdhlkBh ekfld vko';d 725 ogu {kerk ¼es- Vu e/;s½ 7-1 ftYg;karxZr nql&;k VII;kP;k okgrqdhlkBh ekfld vko';d 725 ogu {kerk ¼es- Vu e/;s½ 8 ftYg;[email protected] ekxhy 3 vkfFkZd o"kkZrhy ,dw.k 6]52]032 fu;ru ¼CMR okgrqdhlg½ ¼es- Vu e/;s½ 9 ftYg;[email protected] fu;fer fu;ru fopkjkr ?ksmu 69]08]01]000 vUu/kkU;kP;k okgrqdhoj ¼CMR okgrqdhlg½ ekxhy rhu vkfFkZd o"kkZrhy >kysyk ,dw.kk [kPkZ ¼:i;ke/;s½ 10 ftYg;kr CMR rkanqGkps mRiknu gksr vlY;kl uewn djkos fujad ¼ljkljh okf"kZd es- Vu½ 11 fufonkdkjkpk dkekpk vuqHko ¼ekxhy 3 vkfFkZd o"kkZrhy ,dw.k 2]15]171 okgrwdhP;k 33%½ ifgY;k VII;klkBh & es- Vu e/;s 11-1 fufonkdkjkpk dkekpk vuqHko ¼ekxhy 3 vkfFkZd o"kkZrhy ,dw.k 2]15]171 okgrwdhP;k 33%½ nql&;k VII;klkBh & es- Vu e/;s 12 fufonkdkjkph vkfFkZd dqor ¼ekxhy 3 vkfFkZd o"kkZrhy ,dw.k 22]79]64]330 okgrwd [kPkkZP;k 33%½ & ¼:i;ke/;s½ 13 fufonkdkjkus tek djko;kph blkjk jDde ¼ekxhy 3 vkfFkZd 2]07]24]030 o"kkZrhy ,dw.k okgrwd [kPkkZP;k 3%½ ¼:i;ke/;s½ 14 ;'kLoh fufonkdkjkus tek djko;kph cWad xWjaVh ¼ekxhy 3 3]45]40]050 vkfFkZd o"kkZrhy ,dw.k okgrwd [kPkkZP;k 5%½ ¼:i;ke/;s½

7 It appears that the Petitioner has subsequently made some

grievance and the DSO Nasik submitted another District Sheet which

provided for the following figures:

v- Okkgrqd da=kV fufonk izfdz;slkBh Ukf'kd dz- ftYg;kph ekfgrh 1 ftYg;klkBhps Hkkjrh; vUu 1½ Hkkjrh; vUu egkeaMG] ¼FCI½ euekM] egkeaMGkP;k fofgr csl Msiksapk rk- ukanxko ri'khy 2½ dsanzh; o[kkj egkeaMG] ¼CWC½ ukf'kd jksM] rk- ukf'kd 2 ftYg;krhy 'kkldh; /kkU; xksnkekaph ,dq.k 18 xksnkes ,dw.k la[;k o ri'khy 1½ xksYQ Dyc ukf'kd ¼™;acds'oj xksnke½ 2½ /kkfov ukf'kd ¼ukf'kdjksM½ & FksV okgrqd

Basavraj 6/10 46.6518.21-wp

3½ ukf'kd xzkeh.k ¼ukf'kdjksM½ 4½ bxriqjh 5½ fnaMksjh 6½ dGo.k 7½ isB 8½ fiaiGxko cloar rk- fuQkM 9½ pkanoM 10½ vax.kxko rk- ;soyk 11½ eqlGxko rk- flUuj 12½ /kkfov ekysxko 13½ fuGxOgk.k rk- ekysxko xzkeh.k 14½ ckxyk.k 15½ ukanxko 16½ euekM rk- ukanxko 17½ lqjxk.kk 18½ nsoGk

3 Rkyqdkfugk; pkyw vlysY;k f'k/kkokVi 2609 nqdkukaph la[;k

vUu egkeaMGkP;k fofgr cslMsiksiklwu ftYg;krhy 'kkldh; /kkU;

xksnkekai;Zarph ljkljh varjs ¼fdyksehVj e/;s½

ftYg;krhy 'kkldh; /kkU; xksnkekaiklqu layXu f'k/kkokVi nqdkukai;Zarph ,dw.k ljkljh varjs ¼fdyksehVj e/;s½

laca/khr Hkkjrh; vUu egkeaMGkP;k csl Msiksiklqu laca/khr [email protected]@uxjifj"kn {ks=] rkyqdk eq[;ky;ki;Zarph ljkljh varjs ¼fdyksehVj e/;s½

okgrqdhlkBh ekfld vko';d ogu {kerk ¼es- Vu e/;s½

okgrqdhlkBh ekfld vko';d ogu {kerk ¼es- Vu e/;s½ 8 ftYg;krhy ekxhy 3 vkfFkZd o"kkZrhy 697654 ,dw.k fu;ru ¼CMR okgrqdhlg½¼es- Vu e/;s½

Basavraj 7/10 46.6518.21-wp

9 ftYg;krhy fu;fer fu;ru fopkjkr 554279431 ?ksmu vUu/kkU;kP;k okgrqdhoj gksr vlysyk ,dq.k okf"kZd [kpZ ¼CMR okgrqdhlg½ ¼ekxhy rhu vkfFkZd o"kkZrhy izR;{k okgrqdhP;k vk/kkjs½ ¼:i;ke/;s½

vlY;kl uewn djkos ¼ljkljh okf"kZd es- Vu½ 11 fufonkdkjkpk dkekpk vuqHko ¼ekxhy 198027 3 vkfFkZd o"kkZrhy ,dw.k okgrwdhP;k 33%½ ifgY;k VII;klkBh & es- Vu e/;s 11-1 fufonkdkjkpk dkekpk vuqHko ¼ekxhy 181992 3 vkfFkZd o"kkZrhy ,dw.k okgrwdhP;k 33%½ nql&;k VII;klkBh & es- Vu e/;s 12 fufonkdkjkph vkfFkZd dqor ¼ekxhy 3 182912212 vkfFkZd o"kkZrhy ,dw.k okgrwd [kPkkZP;k 33%½ ¼:i;ke/;s½ 13 fufonkdkjkus tek djko;kph blkjk 16628383 jDde ¼ekxhy 3 vkfFkZd o"kkZrhy ,dw.k okgrwd [kPkkZP;k 3%½ ¼:i;ke/;s½ 14 ;'kLoh fufonkdkjkus tek djko;kph 27713972 cWad xWjaVh ¼ekxhy 3 vkfFkZd o"kkZrhy ,dw.k okgrwd [kPkkZP;k 5%½ ¼:i;ke/;s½

8 According to the Respondents, in the Stage-II, the Petitioner had

transported about 2,05,325 MT of food-grains in the financial year

2019-2020 which according to the District Sheet issued, ought to be

2,15,171 MT. The same is below than the one required in the District

Sheet.

9 In matters of tender, this Court would not sit in appeal over the

decision taken by the Principal. The Court would be more concerned

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with due adherence with the decision making process. This Court

would not normally interfere in tender matters unless it is shown that

the decision making process has been faulted with and/or the decision

is arbitrary.

10 The question is how far this court would dwell upon the

mathematical calculations. The Respondents have considered the

District Sheet about the quantum of the food-grains transported by

the Petitioner during the past three years as required under the

tender document and the minimum 33% of the total figure

transported last three years required.

11 The Respondents, it appears, have considered the calculations

as per the District Sheet issued by the Officer concerned. This Court

would not presume that the volume of the transportation in Stage-II

would always be less than the Stage-I. That was for the Authorities to

consider. This Court would not go beyond the District Sheet that is

placed on record. The Respondents, even from the District Sheet

relied by the Petitioner, are in a position to demonstrate that 33% of

the total metric ton as shown in the said sheet viz. 6,97,654 would be

2,30,225.82, however, the same is calculated as 1,98,027 and

1,81,992/-. The same would be ex-facie incorrect.

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                                                  46.6518.21-wp

12    The Petitioner did not allege mala fide against the Respondents

nor any such specific instances of mala fide are placed on record. The

Petitioner is disqualified on the ground of non-compliance of the

tender conditions. The decision arrived at by the Respondents cannot

be said to be improbable.

13 In light of the above, no interference is called for. The Writ

Petition is disposed. No costs.

14 The Interim Application also stands disposed of.

(SANDEEP V. MARNE, J) (ACTING CHIEF JUSTICE)

15 At this stage, the learned Counsel for the Petitioner seeks

continuation of interim orders for a period of four weeks.

16 Mr.Kumbhakoni, the learned Senior Advocate for the

Respondents opposes the said request.

17 Considering that the interim relief was operating, we continue

the same for a period of two weeks. Needless to state, on lapse of two

weeks, the said protection shall come to end.

(SANDEEP V. MARNE, J)                       (ACTING CHIEF JUSTICE)



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