M/S Krushna Kumar Gokulchand ... vs State Of Maha. Thr. Secy., Dept. Of ...
2023 Latest Caselaw 7004 Bom

                                        1                                 934-MCA-583-2022.odt



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR
                   MISC. CIVIL APPLICATION (REVIEW) NO. 583 OF 2022
                           IN WRIT PETITION NO. 5460 OF 2021
(M/s. Krushna Kumar Gokulchand, through its Partner - Anil Kumar s/o Gokulchand Sharma Vs. State of
                                      Maharashtra & Ors.)
    Office Notes, Office Memoranda of Coram,
    appearances, Court's orders of directions                  Court's or Judge's order
    and Registrar's orders.
            Shri S.P. Dharmadhikari, Senior Advocate with Shri S.M. Vaishnav, Advocate for the
    applicant.
            Ms N.P. Mehta, Assistant Government Pleader for non-applicant No.1.

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

DATE : JULY 14, 2023

Writ Petition No. 5460/2021 was preferred by the applicant being aggrieved by the communication dated 30/9/2021 by which it was held ineligible for participation in the tender process issued by the Department of Food, Civil Supplies and Consumer Protection, State of Maharashtra. The applicant was held ineligible to participate in the tender process on two counts. Firstly, the applicant did not have the experience of minimum transportation of food-grains as prescribed by Clause 5.1 of the Government Resolution dated 15/1/2021. Secondly, it did not satisfy the required capacity of possessing the vehicles for transportation of food-grains. By the judgment dated 14/1/2022, the rejection of the petitioner's bid came to be upheld on both the said counts. The applicant seeks review of the said judgment dated 14/1/2022.

2] On 10/10/2022, the following order was passed :

"For the present, issue notice to the non-applicant nos. 1 and 2 returnable in two weeks.

Learned Assistant Government Pleader Ms S.S. Jachak waives service of notice for the non-applicant nos.1 and 2.

The non-applicant nos.1 and 2 shall file an affidavit clarifying the position as regards the contents of paragraph 20 of the affidavit filed on behalf of the respondent no.1 in the writ petition."

3] Shri S.P. Dharmadhikari, learned Senior Advocate for the applicant submitted that insofar as the aspect of requirement of requisite vehicles under

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the control of the applicant was concerned, the Court relied upon the contents of paragraph 20 of the affidavit filed on behalf of non-applicant no.1. It was stated therein that the applicant owned 28 vehicles having capacity of 499 metric tonnes and 12 hired vehicles having capacity of 205 metric tonnes. The total carrying capacity as required under the tender notice was 913.44 metric tonnes for Buldhana District. Since the documents submitted by the applicant indicated control of vehicles having carrying capacity of 704 metric tonnes, the same were found lesser than the capacity prescribed. It is submitted that the contents of paragraph 20 of the said affidavit filed on behalf of non-applicant no.1 were incorrect. By furnishing all documents it had been indicated by the applicant that insofar as owned vehicles were concerned its capacity was 499 metric tonnes and as regards the hired vehicles it was 566 metric tonnes thus totalling 1065 metric tonnes which was more than required capacity of 913.44 metric tonnes. Inviting attention to the reply filed by non-applicant no.1 to the rejoinder filed by the applicant and especially paragraph 5 thereof, it was pointed out that non- applicant no.1 had admitted that the contents of paragraph 20 in the affidavit filed by non-applicant no.1 with regard to the owned and hired vehicles were incorrect. Inviting attention to the communication dated 15/8/2021 that was issued by the applicant along with Annexures - 4 to 4h thereof, it was submitted that the same indicate possession of total carrying capacity of 1065 metric tonnes which was more than the minimum requirement. Since the Court accepted the contents of paragraph 20 of the affidavit filed by non-applicant no.1 as reflected in paragraph 10 of the judgment under review, the same had resulted in an error apparent on the face of record. On this count, review jurisdiction ought to be exercised.

4] As regards the other ground on which the applicant was non-suited being lack of experience of minimum transportation of food-grains as per Clause 5.1 of the Government Resolution dated 15/1/2021, it was submitted that this Court has held that the interpretation put forth by the applicant on the requisite experience was also a possible interpretation. However, in the absence of any allegation that the applicant was sought to be deliberately kept out of the tender process or that the decision of the tendering authority was tainted with

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malafides or that its decision was arbitrary, irrational or unreasonable, this Court need not interfere in the matter. The learned Senior Advocate referred to Grounds C, G and K in the Writ Petition as well as the averments in paragraph 36 therein to urge that such a plea based on malafides and favoritism had been raised. Relying upon the decision in Kamlesh Verma Vs. Mayawati And Others [(2013) 8 SCC 320], it was submitted that the judgment dated 14/1/2022 ought to be reviewed.

5] The learned Assistant Government Pleader appearing for non-applicant no.1 opposed the prayers made in the review application. Referring to the reply placed on record dated 9/3/2023, it was submitted that in paragraph 5 thereof it had been admitted that the data mentioned in paragraph 20 of the affidavit filed on behalf of non-applicant no.1 regarding the owned and hired vehicles was inadvertent. The applicant had submitted its affidavit only with regard to the hired vehicles and it do not have the capacity of the owned vehicles while submitting the tender. The applicant therefore could not take advantage of the inadvertent error in paragraph 20. It was further submitted that there were no allegations of malafides giving details and therefore the Court was justified in holding against the applicant.

6] Insofar as the rejection of the applicant's bid for lack of requisite experience in the work of food-grain transportation is concerned, the Court had considered Clauses 5.1 and 5.2 of the Government Resolution dated 15/1/2021. According to the tendering authority, work experience of one year in transportation of food-grains under the Government/ Semi-Government contracts was required to be taken into consideration while the applicant had urged that the cumulative total experience ought to be considered. After holding that the tendering authority was best suited to analyze its need as regards requisite experience, the Court had deferred to the interpretation of the tendering authority. In addition, it was found that there were no allegations that the petitioner was sought to be deliberately kept out of the tender process or that the decision of the tendering authority was tainted with malafides or that its decision was arbitrary, irrational or unreasonable. On this count, the Court had not interfered with the decision of the tendering authority.

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On a perusal of Grounds C, G and K of the Writ Petition as well as paragraph 36 thereof, it can be seen that the averments therein are in general terms without specifically indicating the manner in which the applicant was held disqualified in the tender process. Except for stating that the cartel of existing contractors had submitted supporting bids and that there were grave illegalities and malafides on part of the non-applicants, the allegations made are in general terms without greater details. What was intended to be stated while non-suiting the applicant was that the allegation that the applicant was sought to be deliberately kept out of the tender process had not been made out nor was a case of malafides, arbitrariness or unreasonableness. We therefore do not find that the judgment insofar as it upholds the rejection of the applicant's bid for lack of experience of minimum transportation of food-grains as prescribed by Clause 5.1 of the Government Resolution dated 15/1/2021 requires to be reviewed.

7] However, insofar as the aspect of vehicles within the control of the applicant is concerned, since non-applicant no.1 has now admitted in paragraph 5 of its affidavit dated 9/3/2023 that the data mentioned in paragraph 20 of the affidavit dated 6/1/2021 was not correct coupled with the fact that non- applicant no.1 had not disputed the receipt or contents of the e-mail dated 16/8/2021 issued by the applicant or the affidavit dated 16/6/2021 regarding the vehicles under control of the applicant, issue notice of the Miscellaneous Civil Application to non-applicant nos. 3 to 5 on this limited point as regards the eligibility of the applicant with regard to the applicant's capacity of transportation based on self-owned vehicles and vehicles under control. The notice is made returnable on 28/7/2023.

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