M/S Nanak Construction, Thr. Its ... vs State Of Maharashtra, Thr. ...
2023 Latest Caselaw 736 Bom

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     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               NAGPUR BENCH : NAGPUR

                   WRIT PETITION NO.16/2023

M/s. Nanak Construction,
Partnership Firm through its Partner
PAO holder, Roshan Pajabrao Patil,
aged 38 Yrs., Occ. Business, R/o 57,
Near Ganesh Mandir, Dhantoli, Katol,
Dist. Nagpur.                             ...   Petitioner
      - Versus -
1.   State of Maharashtra,
     through its Secretary,
     Water Supply and Sanitation
     Department, Mantralaya,
     Mumbai 32.

2.   Zilla Parishad Nagpur, through
     its Chief Executive Officer, Civil
     Lines, Nagpur.

3.   Executive Engineer,
     Rural Water Supply Department,
     Zilla Parishad, Nagpur.              ...   Respondents

            -----------------
Mr. Abhay Sambre, Advocate for the Petitioner.
Mr. S.M. Ghodeswar,        Assistant Government Pleader for
Respondent No.1.
Mr. P.K. Sathianathan, Advocate for respondent Nos.2 and 3.

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CORAM: A.S. CHANDURKAR & MRS. VRUSHALI V. JOSHI, JJ.

DATE : 20.1.2023

ORAL JUDGMENT (Per A.S. Chandurkar, J.)

Heard. Rule. Rule made returnable forthwith.

Heard finally by consent of learned counsel for the parties.

2. The challenge raised in the present writ petition is to

the communication dated 30.12.2022 issued by the Water Supply

and Sanitation Department of the State Government. By the said

communication addressed to the Chief Executive Officer, Zilla

Parishad, Nagpur it has been informed that the proposal for

blacklisting the petitioner is under consideration. Based on this

communication one of the bids of the petitioner has been held

non-responsive and the petitioner is not being permitted to

participate in the other bids pursuant to the tender notice floated

by respondent No.2. The Zilla Parishad had issued tender notice

inviting bids for about 10 works. The petitioner responded to the 3 wp16.2023

said invitation and submitted its bid. As regards the work

No.2022_NAGPU_857690_2 the petitioner's bid was not

opened on the ground that the instructions from the State

Government in the matter of blacklisting the petitioner were

awaited. The financial bids of the other works were yet to be

opened when this writ petition was filed praying that the

petitioner be permitted to participate in the tender process since

there is no order of blacklisting passed.

3. Mr. Abhay Sambre, the learned counsel for the

petitioner has invited our attention to relevant clauses of the

tender document. As per Clause 15 if a Contractor is

blacklisted / barred from participating in a tender or his

registration is suspended, he is liable to be disqualified. A bidder

is required to submit a self declaration that he is not blacklisted by

any Government Department / Government Local Body or

Government Undertaking. Since there is no order of blacklisting

as on date it is submitted that the petitioner has submitted such

undertaking. Merely on the basis that it is proposed to be 4 wp16.2023

blacklisted, the petitioner cannot be prevented from participating

in the tender process. In support of his contention the learned

counsel has placed reliance on the decision in the case of Caretel

Infotech Ltd. V/s. Hindustan Petroleum Corporation Limited &

Ors. reported in 2019 (14) SCC 81. It is submitted that the

petitioner be permitted to accordingly participate in the tender

process.

4. Mr. P.K. Sathianathan, the learned counsel for

respondent Nos.2 and 3 opposed writ petition. He submitted

that in view of communication received by the Zilla Parishad on

30.12.2022 as the process of blacklisting the petitioner was under

way the petitioner was not qualified to participate in the tender

process. There were about three crimes registered against the

petitioner and considering the seriousness of the same action of

the Zilla Parishad was justified in debarring the petitioner.

Attention was invited to the Government Resolution dated

7.12.2021 and especially clauses 2.2., 2.9 and 2.15 thereof to

sustain the action. Placing reliance on the decision in the case of 5 wp16.2023

N.G. Projects Limited V/s. Vinod Kumar Jain and others reported

in (2022) 6 SCC 127 it is submitted that this Court should be

slow in interfering in matters of such nature. The learned counsel,

therefore, submits that no relief can be granted to the petitioner.

5. On hearing the learned counsel for the parties and

perusing the documents on record it is undisputed that as on date

there is no order of blacklisting passed against the petitioner. The

process to blacklist the petitioner is stated to be under

consideration of the concerned authority. It is in that backdrop

the reliance is placed on the Government Resolution dated

7.12.2021. While there can be no quarrel with the proposition

that in an appropriate case the action of blacklisting may be

justified, it is to be kept in mind unless there is an order of

blacklisting, a bidder is entitled to participate in the tender

process unhindered. The declaration which a bidder has to

submit is an undertaking that an order of blacklisting / bar from

participating in the tender process has not been passed against

him. This presupposes that an order of blacklisting is in 6 wp16.2023

existence. The same is not the case in hand. Even according to

the Zilla Parishad the proposal for blacklisting the petitioner is

pending with the State Government. Thus in absence of any

order of blacklisting being suffered by the petitioner it cannot be

prevented from participating in the tender process on that

ground. In para 24 of the decision in Caretel Infotech Ltd.

(supra) it has been observed as under:-

"24. We may also look at this aspect from another perspective. Blacklisting has very serious consequences. A show cause notice may result in blacklisting or may not result in blacklisting. The mere show cause notice being issued, to visit such a severe consequence on a bidder, may be difficult to sustain."

6. The decision in N.G. Projects Limited (supra) refers

to the parameters for interfering while exercising jurisdiction

under Article 226 of the Constitution of India in tender matters.

The aforesaid decision has been subsequently explained in the

case of Jai Bholenath Construction V/s. The Chief Executive

Officer, Zilla Parishad, Nanded and others (Civil Appeal

No.4140/2022 decided on 18.5.2022) by holding that where 7 wp16.2023

there has been arbitrary exercise of power in rejecting a bid,

interference could be justified.

7. We, therefore, find that in the present case as there is

no order blacklisting the petitioner, the Zilla Parishad was not

justified in restraining the petitioner from participating in the

tender process on that count.

8. For aforesaid reasons, it is held that petitioner is

entitled to participate in the tender process pursuant to the bids

submitted by it. The Zilla Parishad shall consider the petitioner's

bid in accordance with the tender notice and its bids shall not be

rejected only in view of the communication dated 30.12.2022.

Needless to state that if in future the petitioner is blacklisted the

respondents are free to consider that aspect in accordance with

law.

9. Writ petition is allowed in the above terms. Rule

accordingly. No costs.

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10. An authenticated copy of judgment be given to the

learned counsel for the parties.

(MRS. VRUSHALI V. JOSHI, J.) ( A.S. CHANDURKAR J.)

Tambaskar.

Signed By:NILESH VILASRAO TAMBASKAR Private Secretary Date:23.01.2023 10:30