Virag Enterprise Thr Its Partner vs State Of Maharashtra Thr Its ...
2023 Latest Caselaw 2540 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION
                        WRIT PETITION (STAMP) NO.3416 OF 2023
      Virag Enterprises                                         ....Petitioner
            V/S
      State of Maharashtra                                      ....Respondent

      Mr. Pranil Sonawane a/w Ms. Varsha Gangawane i/b M/s. KLS Legal for the
      Petitioner.
      Dr. Birendra Saraf, AG, a/w Mr. P.P. Kakade, GP, Mr. M.M. Pabale, AGP for
      Respondent-State.
                                            ...
                                     CORAM: S.V. GANGAPURWALA, ACJ &
                                               SANDEEP V. MARNE, J.

DATE : 16 MARCH 2023.

P.C.:

1 The Petitioner challenges the condition PQ4 of the tender conditions.

2 The Respondent floated tender for manufacture and supply of fortified

rice kernels. Condition PQ4 assailed in the present Petition reads thus:

# Basic Eligibility Criteria Documents to be submitted Requirement PQ4 Relevant The bidder should have Bidder shall submit the following Experience manufactured and supplied documents-

micronutrients fortified 1. Relevant Work Orders or food/meal/ rice/ kernels of Contract agreements or Award of minimum Rs.65,00,00,000/- contract or LoI (Rupees Sixty five crore only) 2. Experience or Completion excluding Tax/GST to any certificates should be submitted central/state Government/ clearly stating the scope of work Union territory organization performed within India in any one 3. CA certificate clearly stating financial year out of the last 5 turnover from relevant experience financial years (FY 2017-18, as per annexure 2018-19, 2019-20, 2020-21 4. Details of supply as per format and 2021-22) in Annexure

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3 The learned Counsel for the Petitioner strenuously contends that the

condition that the bidder should have supplied fortified food/meal/rice

kernels of minimum Rs.65 crore during any one financial year out of last five

financial years is not in consonance with the purpose and object of the

tender. According to the learned Counsel the scheme for supply of fortified

rice kernels was introduced for the first time in the year 2019. It would not

be possible for any manufacturer of fortified rice kernels to manufacture and

supply the fortified rice kernels of such a huge magnitude. When the policy

is commenced in the year 2019 the condition that in one out of last five

financial years the quantum of Rs.65 crore of the product are to be supplied

is onerous and the same would not be reasonable. The learned Counsel

further submits that the purpose of tender is to invite more competition the

same would frustrate him. The learned Counsel further submits that no

purpose would be served by allowing a person who is not a manufacturer of

fortified rice kernels to submit the tender only because he was manufacturer

and supplier of fortified food/meal in last five years. The same would not be

in-consonance with the object of the tender. The learned Counsel submits

that because of the string conditions the competition is being limited. The

condition is tailor-made for favoured few. The learned Counsel submits that

the judgment of the Aurangabad Bench of this Court relied by the

Respondent wherein challenge is to the same clause of the tender was

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negated also would not be applicable. Inasmuch as the Petitioner in the

said case did not specifically plead nor substantiated his pleadings. It was

on that basis the Aurangabad Bench of this Court negated the challenge to

the condition PQ4. The learned Counsel submits that the said judgment

would not apply as ratio decidendi. Reliance is placed on the judgment of

the Apex Court in a case of Royal Medical Trust vs. Union of India,

reported in (2017) 16 SCC 605.

4 The learned Advocate General for Respondent submits that infact the

judgment of this Court at Aurangabad Bench would squarely apply to the

present case. The challenge to condition PQ4 has been negated by

Aurangabad Bench so also by the Nagpur Bench. The reliance is placed by

the learned Advocate General on the judgment of the Aurangabad Bench of

this Court in case of M/s. Divine Food Industries vs. Department of Food

and Public Distribution in Writ Petition No.151 of 2023 dated 5 January

2023 and another judgment of the Nagpur Bench in Writ Petition No.813 of

2023 dated 3 February 2023 and Writ Petition No.924 of 2023 dated 8

February 2023. According to the learned Advocate General the tender is for

supply of about 31,000 metric ton of fortified rice kernels. The person to

supply such huge quantity should be financially capable and should

possess the necessary infrastructure. The condition is reasonable.

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5        We have considered the submissions.

6        The challenge to the condition PQ4 has already been negated by the

Aurangabad Bench in case of M/s Divine Food Industries (supra) and by

the Nagpur Bench in Writ Petition Nos.813 of 2023 and 924 of 2023. The

judgment of the Nagpur Bench in Writ Petition No.924 of 2023 has been

upheld by the Apex Court in the SLP filed against the said judgment is

dismissed.

7 Even independently considering the case of the Petitioner the

Petitioner has not alleged malafides nor is in a position to substantiate as to

who are those suppliers in whose favour said condition is tailor-made.

8 It is not disputed that the successful bidder would be required to cater

to the huge quantity of the fortified rice kernel i.e. about 31,000 metric ton,

approximately the costs of the same in three years would be about Rs.250

to Rs.300 crores. The person bidding should have a capacity to

manufacture and supply such huge quantity of fortified rice kernel and for

that purpose the condition PQ4 does not appear to be unreasonable.

9 For laying down the condition some leeway has to be given to the

employer. The court should not intervene only because the court would feel

that some other condition would be more better. The experts in the field

prescribe the conditions.

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                 10       In absence of any malafide being pointed out nor the specific details

as to in whose favour the condition is tailor-made it would not be possible to

entertain the challenge to the said condition. As observed above, the

challenge to the said condition has been negated at Aurangabad Bench and

the Nagpur Bench and the order of the Nagpur Bench has been confirmed

by the Apex Court.

11 In light of that no case for interference is made out. The Writ Petition

is dismissed. No costs.

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

Digitally signed by SUDARSHAN SUDARSHAN RAJALINGAM RAJALINGAM KATKAM KATKAM Date:

2023.03.18 13:51:20 +0530

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