Bombay High Court
Suraj Enterprises vs Nashik Municipal Corporation And ... on 3 November, 2023
Bench: Shri Arif Doctor
2023:BHC-AS:33372-DB
5511.23-wp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5511 OF 2023
M/s. Suraj Enterprises
Through its Proprietor -
Mr.Sachin Sampat Shewale
Digitally Age - 40 years, Occupation :
signed by
BASAVRAJ Business,
BASAVRAJ GURAPPA
GURAPPA PATIL Having office at D-56, Vashi
PATIL Date:
2023.11.03
17:07:11
Plaza, Plot 80/81, Sector 17,
+0530 Vashi,
Navi Mumbai - 400703 ..... Petitioner
Versus
1 Nashik Municipal Corporation
Through its Municipal
Commissioner, Rajiv Gandhi
Bhavan, Saharanpur Road,
Nashik - 422001
2 M/s. S and R Pest Control
Services,
Shop No.1, Ground Floor,
Amar Arcade, Kulkarni Colony,
Sadhu Vaswani Road, Nashik
- 422002 ..... Respondents
Mr. Mihir Desai, Senior Advocate I/b. Mr. Sangram Chinnappa
a/w. Ms. Bhoomika Vyas for the Petitioner
Mr. M.L. Patil a/w. Mr. Shridhar A. Patil for Respondent No.1
Mr. R. S. Kohli a/w. Ms. Nikita K. Dharamshi I/b. M/s. C. K. Legal
for Respondent No.2
Basavraj 1/43
::: Uploaded on - 03/11/2023 ::: Downloaded on - 04/11/2023 08:14:04 :::
5511.23-wp
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
RESERVED ON : AUGUST 18, 2023
PRONOUNCED ON : NOVEMBER 3, 2023
JUDGMENT (PER : CHIEF JUSTICE)
1. Heard Mr. Mihir Desai, learned Senior Advocate representing
the Petitioner, Mr. M.L. Patil representing Respondent No.1 and
Mr. R. S. Kohli appearing on behalf of Respondent No.2.
CHALLENGE:
2. The Petitioner which is a proprietary firm, has invoked our
jurisdiction under Article 226 of the Constitution of India with a
prayer to issue writ of certiorari or any other appropriate writ to
quash and set aside the order dated 7th February 2023 to the
extent it holds that Respondent No.2 - M/s. S and R Pest Control
Services as qualified in the technical bid submitted for award of
Tender No.2 pursuant to e-tender notice No.3/2022 floated by
Respondent No.1 - Nashik Municipal Corporation for executing
the work related to daily spraying and fogging activity for control
of Vector Borne Diseases under the Urban Malaria Scheme and to
supply man power, machinery and equipments in Nashik Municipal
Corporation.
Basavraj 2/43
5511.23-wp
3. The Petitioner has also prayed that an appropriate direction
be issued to Respondent No.1 to issue fresh tender for executing
the said works.
CASE SET-UP BY THE PETITIONER:
4. It is the case of the Petitioner that Respondent No.2 had
submitted a certificate from a Chartered Accountant certifying that
its total turn-over in last three years (2018-19, 2019-20 and
2020-21) is more than Rs.4.50 Crores on account of execution of
work carried out relating to spraying and fogging, though on
inquiries it was revealed that Respondent No.2 had not carried
out spraying and fogging work in the relevant period worth more
than Rs.4.50 Crores and that the certificate submitted for the said
years by Respondent No.2 was incorrect.
5. It is also the case of the Petitioner that Respondent No.1
vide its letter dated 3rd November 2023 required Respondent No.2
to submit work orders/documents to establish that it had actually
had turn-over of Rs.4.50 Crores for the relevant period and
Respondent No.2 in its reply dated 7th November 2022 though
submitted certain documents, however, the said documents
reveal that the value of the work order was Rs.62,29,927/-. It
Basavraj 3/43
5511.23-wp
has further been submitted by the learned Senior Advocate for the
Petitioner that the documents submitted by Respondent No.2 vide
its reply dated 7th November 2022 reveal that the most of the
work orders were in respect of rodent, termite and cockroach
control and not mosquito control or spraying and fogging.
6. In the background of the aforesaid facts it has been stated
by the learned Senior Advocate for the Petitioner that tender
condition No.6, which required the tenderer to furnish a Chartered
Accountant certificate evidencing that bidder's total turn-over due
to spraying and fogging activity for last three years should be
more than Rs.4.50 crores, was not fulfilled, however, Respondent
No.1 declared Respondent No.2 to have technically qualified
which is completely illegal, unreasonable and hence the decision
of Respondent No.1 declaring Respondent No.2 to have
technically qualified is liable to be set aside.
7. Further submission on behalf of the Petitioner advanced
before us is that in fact the Tender Committee, in its meeting held
on 13th December 2022 clearly found Respondent No.2 to be
ineligible for not having complied with Tender Condition No.6,
however, the Additional Commissioner, Nashik Municipal
Basavraj 4/43
5511.23-wp
Corporation, relying on the Certificate from another Chartered
Accountant held Respondent No.2 to be eligible. In his
submission, learned Senior Advocate representing the Petitioner
has, thus, stated that Tender Committee which comprised of
experts of the field which consisted of a Biologist, Chief
Accounts/Finance Officer and the Chief Auditor, was of the clear
opinion that Respondent No.2 did not fulfill tender condition No.6
of having turn-over of more than Rs.4.50 Crores in past three
years, however, the said opinion of the Tender Committee was
illegally overruled by the Additional Commissioner of the Municipal
Corporation relying solely on the certificate issued by the another
Chartered Accountant. Such an act, as per the learned Senior
Advocate for the Petitioner, of the Additional Commissioner, is
against all settled norms relating to process of evaluation of the
tender for the reason that the Additional Commissioner could not
have sat in appeal over the opinion formed by the Tender
Committee. It has further been argued that in fact the Additional
Commissioner has made reassessment of the issue as to whether
Respondent No.2 fulfilled condition No.6 which was impermissible
in view of the opinion of the Tender Committee. Learned Senior
Advocate representing the Petitioner further submitted that in
Basavraj 5/43
5511.23-wp
view of the aforesaid facts the process adopted by Respondent
No.1 in evaluating the technical bids submitted by the bidders
cannot be said to be fair and transparent which makes the decision
declaring Respondent No.2 to have qualified in technical bid,
vitiated.
8. Apart from making the assertion in respect of the alleged
illegality in the technical bids submitted by Respondent No.2 to
the extent of Respondent No.2 not fulfilling the requirement of the
turn-over of Rs.4.50 Crores in the past three years, it has also
been stated by the learned Senior Advocate for the Petitioner that
the reason indicated for disqualifying the Petitioner in the
technical bid is also not tenable. In this regard, it has been
submitted that the reason given by Respondent No.1 for
disqualifying the Petitioner is that the certificate of the Chartered
Accountant submitted by it does not bear UDIN and that
Respondent No.1 did not receive any response from the Bank for
verification of solvency certificate submitted by the Petitioner
along with its bid. Another reason indicated by Respondent No.1
for disqualifying the Petitioner is that the GST return summary
was not enclosed and that certificate issued by the
Biologist/Entomologist/Chief Technical Officer evidencing three
Basavraj 6/43
5511.23-wp
years minimum experience of mosquito control was a fake
document. It has been argued by the learned Senior Advocate for
the Petitioner that UDIN was left to be mentioned in the Chartered
Accountant Certificate inadvertently and if the Petitioner was
intimated about the said deficiency, he would have taken remedial
steps. It has also been argued that the solvency certificate
submitted by the Petitioner was a valid certificate and that merely
because the Bank did not verify the certificate, it cannot be a
ground to disqualify the Petitioner. It has also been stated by the
Petitioner that had Respondent No.1 informed the Petitioner about
non verification of the solvency certificate by the Bank, the
Petitioner would have taken steps to ensure that the Bank verifies
the same.
9. As regards the lacunae in the GST Registration Certificate, it
has been stated by the learned Senior Advocate for the Petitioner
that along with the bid documents, the Petitioner inadvertently did
not enclose the GST return summary. Regarding the fake
document in respect of the certificate by Entomologist, it has been
stated in the Writ Petition that some employee of the Petitioner /
firm had inadvertently uploaded the certificate of some wrong
Entomologist. It has been stated that as soon as this fact was
Basavraj 7/43
5511.23-wp
informed by Respondent No.1 by letter dated 12th October 2022,
the Petitioner, on the next date vide its reply dated 13 th October
2022 informed Respondent No.1 about the error and also
submitted the certificate of correct Entomologist. On these counts
the submission of the learned Senior Advocate for the Petitioner
is that on one hand Respondent No.2 has been declared qualified
in the technical bid illegally whereas in the process of evaluation
of technical bid the Petitioner has wrongly been declared to be
disqualified.
10. Thus, the submission on behalf of the Petitioner is that the
impugned actions on the part of Respondent No.1 in declaring
Respondent No.2 to have technically qualified and the Petitioner
to have technically disqualified are absolutely illegal and hence not
tenable in the eyes of law. The prayer, thus, is that the decision
of Respondent No.1 declaring Respondent No.2 to have
technically qualified be set aside and directions be issued for re-
tender.
11. At this juncture itself, it is noteworthy to note that though
certain averments in the Writ Petition have been made by the
Petitioner pointing out alleged errors in evaluating the Petitioner's
Basavraj 8/43
5511.23-wp
technical bid and declaring Respondent No.2 to be qualified,
however, no prayer in respect of the Petitioner for declaring it to
have technically qualified has been made in the Writ Petition.
CASE SET-UP BY RESPONDENT NO.1:
12. Respondent No.1 - Nashik Municipal Corporation has filed
an Affidavit-in-Reply denying the allegations and averments made
in the Writ Petition and further submitting that in evaluating the
tenders and awarding the contracts, the parties are to be
governed by commercial prudence and to that extent principle of
equity and natural justice have to stay at a distance. In this view,
it has been submitted by the learned Counsel representing
Respondent No.1 that the impugned decision declaring
Respondent No.2 to have technically qualified does not warrant
any interference by this Court.
13. It has further been argued that the Petitioner had also
participated in the tender, however, he was unsuccessful as his
technical bid has been rejected for valid reasons and as such any
attempt by an unsuccessful tenderer with imaginary grievances
and on account of business rivalry, cannot be permitted by this
Court to persuade itself to interfere by exercising its jurisdiction
Basavraj 9/43
5511.23-wp
of judicial review under Article 226 of the Constitution of India.
Reliance in this regard has been placed by the learned Counsel
representing Respondent No.1 on the judgment of this Court in
the case of Uflex Ltd. Vs. Government of Tamil Nadu and
Ors.1
14. Apart from placing reliance on the judgment of Uflex Ltd.
(supra), learned Counsel for the Respondent No.1 has also placed
reliance on the judgment of The Silppi Constructions
Contractors Vs. Union of India.2 to submit that unless there is
a overwhelming case to justify judicial intervention in the matters
of the contract involving State or its instrumentalities, the Court
should give way to the opinion of the experts and since in this
case the impugned decision declaring Respondent No.2 is based
on the opinion expressed by the Chartered Accountant who is an
expert in the area, no interference is permissible in this Writ
Petition. Reliance has also been placed by Respondent No.2 on
the judgment of this Court in the case of Gypsum Structural
India Pvt. Ltd. Vs. Brihanmumbai Municipal Corporation
and Others3 and on the judgment of the Hon'ble Supreme Court
1 (2022) 1 SCC 165
2 (2020) 16 SCC 489
3 (2023) SCC OnLine Bom 683
Basavraj 10/43
5511.23-wp
in the case of Bharat Coking Coal Limited & Ors. Vs. Amar
Dev Prabha & Ors.4
15. It has been argued further on behalf of Respondent No.1
that the decision to declare Respondent No.2 technically eligible
was taken in terms of the provisions contained in Clause
4.4.3.1(c) of the Government Resolution dated 1st December 2016
to avoid epidemic like situation in emergency considering the
acute shortage of man power to provide adequate services for
prevention of vector borne diseases.
16. It is also the case of Respondent No.1 that tender conditions
clearly stipulated that the Corporation reserves the 'right to accept
or reject' any or all the offers or cancel the tender process without
assigning any reason and hence the Petitioner cannot have any
grievance.
17. It has further been submitted by the learned Counsel
representing Respondent No.1 that as per its own averments
made in the Writ Petition in paragraph No.4(d),4(u)(i)(ii)(iii) & (iv)
and paragraph No.5(i)(ii)(iii) & (iv) the Petitioner admits
submission of wrong documents due to inadvertence and further
4 (2020) 16 SCC 759
Basavraj 11/43
5511.23-wp
that the Petitioner has admitted that in the Chartered Account
Certificate submitted by it for fulfillment of requirement of
condition No.6 relating to turn-over of Rs.4.50 Crores in past three
years, the UDIN was left inadvertently. It is also the case set up
by Respondent No.1 that the Petitioner itself has admitted that
the Bank did not verify the solvency certificate and that the GST
return summary as per the requirement of condition No.11 was
also not furnished by it. Respondent No.1 further submits that,
in fact, the Petitioner is guilty of furnishing fake certificate of
Mr.Sudhir Daptarkar, Entomologist stating that Mr.Daptarkar had
been working with the Petitioner for a period of 15 years with his
signature and stamp of the firm, however, the said document has
been found to be false, fabricated and fake.
18. It is also stated on behalf of Respondent No.1 that a
complaint dated 6th October 2022 was received on 12 th October
2022 wherein Mr.Daptarkar had stated that the Petitioner had
misused his name and qualification and it had wrongly and falsely
shown him working with it for last 15 years. It is further stated in
the said complaint that Mr.Daptarkar denied having worked with
the Petitioner and having ever given any certificate in favour of
the Petitioner. The learned Counsel for Respondent No.1 has
Basavraj 12/43
5511.23-wp
further argued that the documents used by the Petitioner in this
Writ Petition are said to have been obtained by him under the
Right to Information Act, whereas, the said fact is completely
incorrect for the reason that the Application under the Right to
Information Act was not made by the Petitioner but by one
Mr.Sandesh Madhav Phule on 20th March 2023 and hence, the
Petitioner had made wrong averments in the Writ Petition which
shows its mala fide intention and oblique motive to stall the
process of tender depriving the Corporation to provide necessary
services for controlling the vector borne diseases. In the light of
these submissions it has been argued by the learned Counsel
representing Respondent No.1 that since the Petitioner itself
admits having not fulfilled the tender conditions and also because
the Petitioner has not approached this Court with clean hands, the
instant Writ Petition is liable to be dismissed at its threshold.
19. Regarding Respondent No.2 having qualified in the technical
bid, it has been stated and argued by learned Counsel
representing Respondent No.1 that vide letter dated 12th October
2022 an opinion was sought by Respondent No.1 from Mr.Yogesh
Kataria, Tax Consultant who is a Chartered Accountant, on the
Chartered Accountant certificate regrading total turn-over due to
Basavraj 13/43
5511.23-wp
spraying and fogging activity for past three years and in his reply
the said Chartered Accountant clearly opined that the Chartered
Accountant Certificate tendered by Respondent No.2 has
evidenced that it has a turn-over without GST of Rs.5.64 Crores
in past three years (2018-2019, 2019-2020 and 2020-2021). The
submission, thus, is that Mr.Yogesh Kataria, Tax Consultant is a
Chartered Accountant who is also an expert in the field and since
he had verified the documents submitted by Respondent No.2
and further verified that Respondent No.2 had the turn-over of
Rs.5.64 Crores in past three years, as such, Respondent No.2 was
rightly declared to have technically qualified.
20. It is further submitted on behalf of Respondent No.1 that
decision to declare Respondent No.2 to have technically qualified
is based on the opinion of an expert which cannot be doubted in
any manner and thus the instant Writ Petition is nothing but a
mala fide attempt on the part of the Petitioner to stall the tender
process.
21. It has been argued by Respondent No.1 that the Municipal
Commissioner of Nashik Municipal Corporation has delegated his
powers to the Additional Municipal Commissioner and under this
delegated power and after considering the opinion of the expert
Basavraj 14/43
5511.23-wp
viz. Mr. Yogesh Kataria and further invoking the emergency
powers available under Clause 4.4.3.1(c) of the Procurement
Manual, in larger public interest, to avoid delay, the decision to
declare Respondent No.2 to be technically qualified was taken
which cannot be faulted with. It is also stated that the Additional
Municipal Commissioner did not overrule the decision of Tender
Committee for the reason that the Tender Committee consists of
Chairman and other three members and it does not consist of only
three members and hence the opinion expressed by the three
members cannot be said to be an opinion of the Tender
Committee. The submission is, thus, that the decision taken by
the Additional Municipal Commissioner declaring Respondent
No.2 to have technically qualified is lawful and needs no
interference. On the basis of this, the submission is that the Writ
Petition deserves to be dismissed.
SUBMISSION ON BEHALF OF RESPONDENT No.2:
22. The learned Counsel representing Respondent No.2 has
submitted that scope of judicial review in contractual matters is
very limited and further that the authority authoring the tender
document is the best person to entertain and appreciate its
requirements and therefore interpretation of such a document
Basavraj 15/43
5511.23-wp
should not be guessed by Court in the judicial review. It has
further been argued on behalf of Respondent No.2 that technical
evaluation or comparison by the Court is impermissible. The
submission on behalf of Respondent No.2 is also that the
requirement of having turn-over of more than Rs.4.50 Crores in
past three years was fulfilled which was evidenced by the
documents submitted by Respondent No.2 along with tender and
on verification by an expert i.e. the Chartered Accountant, it has
been opined that Respondent No.2 did have the requisite turn-
over. It has, thus, been urged that any interference in such a
matter by this Court in exercise of its jurisdiction under Article 226
of the Constitution of India will be impermissible. Reliance by
Respondent No.2 in support of its submission has been placed on
the judgments in the case of Agmatel India Private Limited Vs.
Resoursys Telecom and Ors.5, Raunaq International Ltd.
Vs. I.V.R. Construction Ltd. & Ors.6, Shri K. Jayaram & Ors.
Vs. Bangalore Development Authority & Ors. in Civil Appeal
No(s).7550-7553 of 2021 and in the case of Tata Cellular Vs.
Union of India7.
5 (2022) 5 SCC 362
6 (1999) 1 SCC 492
7 (1994) 6 SCC 651
Basavraj 16/43
5511.23-wp
DISCUSSION AND ANALYSIS:
23. Having heard the competing arguments advanced by learned
Counsel representing the respective parties and perused the
pleadings and documents available on record of this Writ Petition,
the issue which emerges for our consideration in this case is, as
to whether the decision-making process adopted by Respondent
No.1 in declaring Respondent No.2 to have technically qualified,
is just, proper and lawful ? And further, as to whether the reasons
given by Respondent No.1 for declaring Respondent No.2 to have
technically qualified are sustainable?
24. The scope of writ jurisdiction, a public law remedy in the
matters relating to contract, where the State or its instrumentality
is a party to the contract, has been much debated in Superior
Courts, however, the law which has emerged is that jurisdiction
under Article 226 of the Constitution of India is not excluded as a
principle, in contractual matters and further that if the State or its
instrumentality violates its constitutional mandate under Article
14 of the Constitution of India and acts unfairly and unreasonably,
the relief under the plenary powers under Article 226 of the
Constitution of India can be granted. It is also settled now that
Basavraj 17/43
5511.23-wp
while exercising the jurisdiction under Article 226 of the
Constitution of India though the Court is entitled to inquire into
the issue as to whether the action of the State or its
instrumentality is arbitrary or unfair, however, exercise of such
jurisdiction has to be made with circumspection. It is equally well
settled that the jurisdiction under Article 226 of the Constitution
of India cannot be ousted only on the basis that dispute pertains
to contractual arena. At this juncture, regard may be had to the
observations made by the Hon'ble Supreme Court in paragraphs
40, 41 of the judgment in the case of Unitech Limited and
Others Vs. Telangana State Industrial Infrastructure
Corporation (TSIIC) and Ors.8. Somewhat similar view has
been expressed by the Hon'ble Supreme Court in the case of Tata
Motors Ltd. Vs. Brihan Mumbai Electric Supply & Transport
Undertaking (BEST) and Ors.9. While considering the decision
in the case of N.G.Projects Ltd. Vs. Vinod Kumar Jain10,
wherein it was held that the writ court should refrain itself from
imposing its decision over the decision of the employer as to
whether to accept the bid of a tenderer and that contract of public
8 2021 SCC OnLine SC 99
9 2023 SCC OnLine SC 671
10 (2022) 6 SCC 127
Basavraj 18/43
5511.23-wp
service should not be interfered with lightly. Hon'ble Supreme
Court in paragraph 48 of Tata Motors (supra) held that superior
courts being guardians of fundamental rights are duty bound to
interfere when there is arbitrariness, irrationality, mala fides and
bias. The Hon'ble Supreme Court, in the case of Tata Motors
(supra), also took note of its judgment in the case of Silppi
Constructions Contractors (supra). Paragraph 48 of the
judgment in the case of Tata Motors (supra) is relevant which
is extracted hereinbelow:
"48. This Court being the guardian of fundamental rights is duty-
bound to interfere when there is arbitrariness, irrationality, mala
fides and bias. However, this Court has cautioned time and again
that courts should exercise a lot of restraint while exercising their
powers of judicial review in contractual or commercial matters.
This Court is normally loathe to interfere in contractual matters
unless a clear-cut case of arbitrariness or mala fides or bias or
irrationality is made out. One must remember that today many
public sector undertakings compete with the private industry. The
contracts entered into between private parties are not subject to
scrutiny under writ jurisdiction. No doubt, the bodies which are
State within the meaning of Article 12 of the Constitution are
bound to act fairly and are amenable to the writ jurisdiction of
superior courts but this discretionary power must be exercised
with a great deal of restraint and caution. The courts must realise
their limitations and the havoc which needless interference in
commercial matters can cause. In contracts involving technical
issues the courts should be even more reluctant because most of
us in Judges' robes do not have the necessary expertise to
adjudicate upon technical issues beyond our domain. The courts
should not use a magnifying glass while scanning the tenders and
make every small mistake appear like a big blunder. In fact, the
courts must give "fair play in the joints" to the government and
public sector undertakings in matters of contract. Courts must
also not interfere where such interference will cause unnecessary
loss to the public exchequer. (See : Silppi Constructions
Basavraj 19/43
5511.23-wp
Contractors v. Union of India, (2020) 16 SCC 489)"
25. It is true that in certain circumstances, a Writ Petition
challenging decision of the authority floating the tender in
accepting or rejecting of bid may not be maintainable, however,
as held in Bharat Coking Coal Limited (supra) public law
remedy may be sought in such matters provided in addition to
arbitrariness, illegality or discrimination under Article 14 of the
Constitution of India or encroachment of rights under Article
19(1)(g), public interest too is demonstrated. Paragraph 34 of
the said judgment is extracted hereinbelow:
34. It is thus imperative that in addition to arbitrariness,
illegality or discrimination under Article 14 or encroachment
of freedom under Article 19(1)(g), public interest too is
demonstrated before remedy is sought. Although the
threshold for the latter need not be high, but it is
nevertheless essential to prevent bypassing of civil courts
and use of constitutional avenues for enforcement of
contractual obligations.
26. In Tata Cellular (supra), a clear principle of law has been
laid down according to which even in matters relating Government
contracts or tenders a decision or the action of the State must be
in consonance with Article 14 of the Constitution of India. It is
only the decision-making process and not the merit of the decision
which can be judicially scrutinized by the superior courts. Tata
Cellular (supra) further states that the issue as to whether the
Basavraj 20/43
5511.23-wp
decision or action of the State or its instrumentality in
tender/contractual matters is vitiated by arbitrariness, unfairness,
illegality or irrationality, can be gone into.
27. Thus, in light of the above discussion, the principle of law
which emerges in the matter of interference of this Court in
exercise of writ jurisdiction under Article 226 of the Constitution
of India in the matters relating to tender/contracts where State or
its instrumentality is a party, primarily is that it is the decision-
making process and not the decision itself which is permissible to
be judicially scrutinized. It is also equally well settled that this
Court can in such matters go into the issue of unreasonableness
of the decision though while judicially scrutinizing such matters,
the Court has to be circumspect and cautious and while permitting
adequate space to the State or its instrumentality it should also
be alive to the situation where such decisions are infested with
arbitrariness, unreasonableness or unfairness. The sum and
substance, thus, is that interference by this Court in
contractual/tender matters is permissible with a caveat that such
interference is to be guided by larger public interest and also that
it should be for safeguarding and protecting the rights under
Article 14 and 19(1)(g) of the Constitution of India.
Basavraj 21/43
5511.23-wp
DISCUSSION AND ANALYSIS:
28. The facts of the case as presented before us are, thus, to be
analyzed and our conclusion is to be reached on the anvil of the
law as discussed above.
29. So far as the claim of the Petitioner that its technical bid was
wrongly and unlawfully rejected, we are of the opinion that the
submissions made in this regard by the learned Senior Advocate
appearing for the Petitioner do not hold any ground for the reason
that various admissions have been made in the Writ Petition itself
by the Petitioner whereby it is established that the Petitioner did
not fulfill the tender conditions. In this regard, we may state that
the Petitioner has itself admitted in the Writ Petition that the
Chartered Accountant certificate submitted by it did not bear UDIN
and the explanation for not doing so as given by the Petitioner
does not appeal to us. Similarly, it is also the admission of the
Petitioner in the Writ Petition itself that the solvency certificate
submitted by the Petitioner was not verified by the Bank. The
Petitioner also admits that along with the bid documents it did not
furnish GST return summary. It has also been admitted that the
certificate submitted of the Entomologist of the Petitioner was a
Basavraj 22/43
5511.23-wp
wrong certificate, however, all these lacunae and deficiencies in
the tender documents submitted by the Petitioner have been
sought to be attributed by the Petitioner to inadvertent mistakes.
30. The contention made by the learned Counsel for the
Petitioner giving explanation for non-fulfillment of the conditions
of the tender are not tenable. It is for the tenderer to be cautious
and vigilant while furnishing the tender documents and attributing
non-submission / submission of incorrect documents or wrong
certificate to an inadvertent mistake, cannot be accepted. The
tender documents are to be evaluated by the tender floating
authority. Evaluation of any bid has to be made by the tender
floating authority on the basis of the documents submitted by the
tenderer and it is required, under any law that for removing the
deficiencies in the tender documents, any opportunity needs to be
given for the tenderer. Seeking clarification in respect of certain
documents and giving opportunity to replace the document or to
remove the deficiency in the documents furnished by the tenderer
are two different aspects of the matter. It is not the case of the
Petitioner that any clarification ought to have been sought by
Respondent No.1 while evaluating the tender document
submitted by the Petitioner; rather the case set-up by the
Basavraj 23/43
5511.23-wp
Petitioner is that it had submitted wrong documents / incomplete
documents and had Respondent No.1 intimated the Petitioner to
remove the deficiencies, it would have removed the same. Such
contention, in our considered opinion, is not tenable. Thus, the
submissions made by learned Senior Advocate for the Petitioner
challenging the rejection of its technical bid merit rejection, which
are hereby rejected.
31. As far as the decision of Respondent No.1 to declare
Respondent No.2 to have technically disqualified is concerned, we
now need to consider justification sought to be given by
Respondent No.1 for the said decision.
32. In this regard, the minutes of meeting of Tender Committee,
dated 13th December 2022 are relevant to be referred to. The
Tender Committee, in its meeting held on 13 th December 2022
has clearly opined that Respondent No.2 did not comply with
condition No.6 in e-tender No.2 and hence it became technically
ineligible. The said minutes of meeting of the Tender Committee
held on 13th December 2022 have been signed by (i) the Biologist
and Member Secretary, (ii) Chief Accounts and Finance Officer
and Member and (iii) the Chief Auditor and Member of the Tender
Basavraj 24/43
5511.23-wp
Committee of Nashik Municipal Corporation. Below the said
opinion formed by the Tender Committee is a note appended by
the Additional Municipal Commissioner (Services) and Chairman
of the Tender Committee stating that the Chartered Accountant
Certificate submitted by Respondent No.2 was checked by him
and it was found that its total turn-over was Rs.5.64 Crores and
it was, thus, ensured that it had become eligible. The Additional
Commissioner (Services) and the Chairman of the Tender
Committee, thus, writes in his noting that there is no objection to
open the financial bid submitted by Respondent No.2. The
Minutes of the Tender Committee along with the noting appended
by the Additional Commissioner (services) of Respondent No.1
Nashik Municipal Corporation is extracted hereinbelow:
"EXHIBIT - I
Malaria Department,
Date 13.12.2022.
MINUTES
Humbly Submitted:
As regards triennial e-Tender No.01 for three Wards viz.
Panchavati, Nashik East and Nashik Road and Tender No.02 for
the three wards viz. Nashik West, New Nashik (CIDCO) and
Satpur, for appointing a Contractor to control the mosquito and
insect-borne diseases within the limits of Nashik Municipal
Corporation, Nashik, the new e-Tender for 25 days was published
on the date 08.07.2022. However, on the date 01.08.2022, when
the web-site viz. https://mahatenders.gov.in was checked, it was
noticed that in both the e-Tenders, one and the same tenderer
had submitted the tender and therefore, the time period for both
e-Tenders was initially extended for the period of 15 days.
Basavraj 25/43
5511.23-wp
Thereafter, again on the date 15.08.2022, when the web-site viz.
https://mahatenders.gov.in was checked, it was noticed that, in
both the e-Tenders, one and the same tenderer had submitted
the tender and therefore, the time period for both e-Tenders was
extended for second time by 07 days. Thereafter, on the date
23.08.2022, the technical bid for both e-Tenders was opened.
However, in both the tenders, both the tenderers were became
technically ineligible and therefore, on the date 22.09.2022, the
Commissioner and Administrator had directed to cancel the e-
Tenders and to again invite tenders afresh. Pursuant thereto, on
the date 26.09.2022, the Malaria Department had published e-
Tender afresh. The technical bid for the said tenders was opened
on the date 06.10.2022. Three tenderers had taken part in
Tender No.02. Their names are: (1) S and R Pest Control
Services, Nashik, (2) Orion Pest Solution Pvt. Ltd., Kolkata, West
Bengal and 3) Messrs Suraj Enterprises, Navi Mumbai.
In order to check the technical documents / certificate in
respect of the said tender, a Tender Committee, as approved by
the Commissioner and Administrator was set up as under:
Sr. No. Officer Designation in
Tender
Committee
1. Shri Ashok Atram (Additional Chairman
Commissioner (Service))
2. Shri Bodhikiran Sonkamble (Chief Member
Auditor)
3. Shri Narendra Mahajan (Chief Member
Accounts and Finance Officer)
4. Shri Dr. Rajendra Tryambake Member
(Biologist) Secretary
In pursuance thereof, in the meetings, held on the dates
17.10.2022 and 07.11.2022, in the chamber of the Additional
Commissioner (Service) for checking the technical
documents/Certificate for the said tender, the above named
Committee Members had remained present.
The Department, after carrying out procedure as per the first
minutes, produced before the Tender Committee the documents
that have been received in respect of Tender No.02 and in
Basavraj 26/43
5511.23-wp
pursuance thereof, the Tender Committee gave its opinion as
follows:
TENDER NO.02:
1. As per the instructions given in respect of Condition No.06
in the tender, the Tender Committee got checked the CA
Certificate submitted by the Tenderer by the Municipal
Chartered Accountant. As per the same, as per the CA
Certificate submitted by Messrs S and R Pest Control
Services, Nashik, its Total Turnover (excluding GST) is
5.64 Crores and as per the terms and conditions of the
tender, in respect of Tender No.02, there was a condition
that the turnover should be 4.50 Crores. According to the
said condition, its Total Turnover is more than the amount
mentioned in the terms and conditions. However, as per
the objection raised by the Tenderers about Messrs S and
R Pest Control Services, Nashik not having experience of
the work of Spraying And Fogging as mentioned in
Condition No.06 in the Tender, copies of the Work Order
for the work of Spraying and Fogging received by the said
tenderer during the period from the year 2018-19, 2019-
20, 2020-21 and certificates for having completed the said
work were called for from it. Pursuant thereto, Messrs S
and R Pest Control Services, Nashik has produced the
Work Orders for the work of Spraying And Fogging, totally
amounting to Rs.60,03,384/- (in words - Rupees Sixty Lac
Three Thousand Three Hundred and Eighty Four only) and
therefore, it is seen that it does not comply with the
Condition No.06.
Similarly, when the report in respect of Messrs Orion
Pest Solution Pvt. Ltd., Kolkata, West Bengal, received
from C.A. as per Condition No.06 is checked, nothing about
the Spraying and Fogging Activity has been mentioned in
the CA Certificate as required as per the terms and
conditions of the tender. There is no mention about UDIN
Number. Further, it has not produced to the Department,
the Work Orders for its having carried out the work of
Spraying And Fogging during the period of years 2018-19,
2019-20, 2020-21 and certificates for having completed
the said work and therefore, it is seen that it does not
comply with the Condition No.06.
Further, as per the Condition No.6, after the Suraj
Enterprises, Navi Mumbai submitted the Work Orders for
Basavraj 27/43
5511.23-wp
its having carried out the work of Spraying And Fogging
during the period of years 2018-19, 2019-20, 2020-21 and
certificates for having completed the said work, when the
Tender Committee checked the same, it is seen that it has
submitted the certificate for having completed the work to
the tune of Rs.7,36,92,252/- issued by the Medical Health
Officer, Navi Mumbai Municipal Corporation. However,
when the Tender Committee checked the CA Certificate
submitted by Messrs Suraj Enterprises, Navi Mumbai as
per Condition No.6, there is no UDIN Number mentioned
therein and therefore, as it is not in accordance with the
Rules, it is seen that the said Company does not comply
with the Condition No.06.
2. As per the Condition No.07 of the tender, when the
Tender Committee sent an e-mail on the date 18.10.2022
to the Bank of Baroda, West Bengal for verifying the Bank
Solvency Certificate submitted by Messrs Orion Pest
Solution Pvt. Ltd., Kolkata, West Bengal; the Bank, by its
e-mail, has informed to the Department that, the said
Bank of Baroda had not issued any Bank Solvency
Certificate in whatsoever manner to Messrs Orion Pest
Solution Pvt. Ltd., Kolkata, West Bengal. When
the documents received by E-mail were placed before the
Tender Committee and when the same were checked by
the said Committee, it becomes clear that the said Bank
Solvency Certificate is bogus and therefore, it is seen that
Messrs Orion Pest Solution Pvt. Ltd., does not comply with
the said condition and instructions were given to take
further action as per the Rules.
Further, on the date 18.10.2022, when a letter on
behalf of the Department was personally submitted to the
Cosmos Co-operative Bank, Nashik Branch for verification
of the Bank Solvency Certificate submitted by Messrs S
and R Pest Control Services, Nashik, the said Bank has
informed to the Department that the Cosmos Co-operative
Bank has issued Bank Solvency Certificate to Messrs S
and R Pest Control Services, Nashik and therefore, it is
seen that the said Company complies with the Condition
No.07.
On the date 18.10.1022, an e-mail was sent by the
Department to the Bank of Maharashtra, Navi Mumbai
Bank for verification of the Bank Solvency Certificate
submitted by Messrs Suraj Enterprises, Navi Mumbai,
Basavraj 28/43
5511.23-wp
however, no reply of whatsoever nature has been received
from the Bank of Maharashtra and therefore, no
verification in respect thereof could be carried out.
3. As regards Condition No.8, it has come to the notice
of the Tender Committee that, the certificates about
having experience of carrying out the work within the
limits of Municipal Corporation that have been submitted
by the tenderer namely Messrs Orion Pest Solution are of
having experience of less than 3 years, and hence Messrs
Orion Pest Solution does not comply with the said
condition.
The certificate that Messrs S and R Pest Control
Services, Nashik has submitted shows that it has an
experience of more than 3 years of carrying out the work
within the limits of Municipal Corporation and therefore, it
is seen that the said company complies with the said
condition.
The certificate that Messrs Suraj Enterprises, Navi
Mumbai has submitted shows that it has an experience of
more than 3 years of carrying out the work within the limits
of Municipal Corporation and therefore, it is seen that the
said company complies with the said condition.
4. When the Tender Committee checked the report
received from CA in connection with the Condition No.09,
it is found that the print of the Audited Financial Statement
that Messrs Orion Pest Solution Pvt. Ltd., Kolkata, West
Bengal has submitted for the Financial Year 2018-19 as
per the Condition No.9 is faint and as the legible print has
not been made available for ascertaining the turn over as
mentioned in the Certificate, it is seen that the said
Company does not comply with the said condition.
When the report in connection with the Condition No.
09 in respect of Messrs S and R Pest Control Services,
Nashik, received from CA is checked, it is seen that the
said Company complies with the said condition.
Further, when the report in connection with the
Condition No. 09 in respect of Messrs Suraj Enterprises,
Navi Mumbai, received from CA is checked, it is seen that
the said Company complies with the said condition.
Basavraj 29/43
5511.23-wp
5. When the Tender Committee checked the report
received from CA in connection with the Condition No.10,
it is found that UDIN Number is not mentioned in the
Certificate submitted by Messrs Orion Pest Solution Pvt.
Ltd. , Kolkata, West Bengal and therefore, it is seen that,
as it is not in accordance with the Rules, it does not
comply with the said condition.
Further, when the report in connection with the
Condition No. 10 received from CA in respect of Messrs S
and R Pest Control Services, Nashik is checked, it is seen
that it complies with the said condition.
Further, when the report in connection with the
Condition No. 10 received from CA in respect of Messrs
Suraj Enterprises, Navi Mumbai is checked, it is seen that
it complies with the said condition.
6. As per Condition No.11, when the Tender Committee
checked the Report received from the C.A., it is found that
M/s S. & R. Pest Control Services, Nashik and Orion Pest
Solution Pvt. Ltd., Kolkata, West Bengal are complying
with the Condition No.11.
On checking the report received from the C.A. as per
Condition No.11, it is found that M/s. Suraj Enterprises,
Navi Mumbai has not annexed the GST return summary
and therefore, it is seen that it does not comply with the
condition No.11.
7. When the Tender Committee checked the documents
in respect of depositing salary of the Chief Technical
Officers for three years with the Bank, submitted by M/s
S. & R. Pest Control Services, Nashik as per condition
No.17, it is seen that it complies with the condition No.17.
M/S. Orion Pest Solution Pvt. Ltd., Kolkata, West
Bengal and Suraj Enterprises, Navi Mumbai have not
submitted to the Department, the documents in respect of
depositing salary of the Chief Technical Officers for three
years with the Bank, it is seen that they do not comply
with the condition No.17.
8. As M/s S. and R. Pest Control Services, Nashik is not
complying with the condition No.06 in E-Tender No.02, it
Basavraj 30/43
5511.23-wp
becomes ineligible as regards the condition of technical
documents.
As M/S. Orion Pest Solution Pvt. Ltd., Kolkata, West
Bengal does not comply with condition Nos. 06, 07, 08,
09, 10, 17, 18, it becomes ineligible as regards the
condition of technical documents.
As Suraj Enterprises, Navi Mumbai does not comply
with condition No. 06, 11, 17, it becomes ineligible as regards
the condition of technical documents.
Sd/- Sd/-
(Shri Dr.Rajendra Tryambake) (Shri Narendra Mahajan)
Biologist and Member Secretary, Chief Accounts and Finance
Officer
Tender Committee and Member, Tender
Committee,
Nashik Municipal Corporation, Nashik Nashik Municipal Corporation,
Nashik
(Sd/-)
(Shri Bodhikiran Sonkamble)
Chief Auditor and Member,
Tender Committee
Nashik Municipal Corporation, Nashik
Checked the C.A. certificates submitted by M/s. S. and R.
Pest Control and it is found that its total turnover is 5.64 crores
and as it is ensured to that effect, it becomes eligible. Hence,
there is no objection to open its financial Bid.
(Sd/-)
(Shri Ashok Atram)
Additional Commissioner (Services) and
Chairman,
Tender Committee
Nashik Municipal Corporation, Nashik"
33. In the Affidavit-in-Reply filed by Respondent No. 1, it has
been stated that the decision of the Tender Committee as
embodied in the minutes dated 13 th December 2022 was not
Basavraj 31/43
5511.23-wp
overruled by the Additional Commissioner, rather he found
Respondent No. 2 to be technically eligible on the basis of the
opinion expressed by Shri. Yogesh Kataria, Chartered Accountant
vide his letter dated 12th October 2022.
34. The opinion by the Chartered Accountant Shri Yogesh
Kataria was given by him in response to a letter by the Corporation
dated 12th October 2022, whereby his opinion was sought in
respect of the tender documents with a specific reference to
tender condition Nos. 6, 9, 10 and 11. The opinion of the
Chartered Accountant Shri. Yogesh Kataria is embodied in his
letter dated 12th October 2022, which is extracted hereinbelow: -
"AYG & ASSOCIATES
CHARTERED ACCOUNTANTS
NASHIK MUMBAI THANE PUNE
To
Shri Dr. Rajendra Trymbake
Biologist
Nashik Municipal Corporation
Rajiv Gandhi Bhavan
Nashik
Sub: - Opinion on Pest Control Tender Document
evaluation
Ref: - Your Office Letter No. Ja.No./Malaria/
Va.Shi/ Dept./74/2022 dated 12th Oct 2022
Sir,
With reference to above letter, your office has called our
opinion for Pest Control Tender Document verification with
Basavraj 32/43
5511.23-wp
specific reference to Tender conditions 6, 9, 10 and 11. We have
verified the bidder's tender document submission with reference
to points mentioned above i.e. condition number 6, 9, 10 and 11.
The document verification as to be done for 2 tender documents
(Nivedika 1 and Nivedika 2) identified by Tender id as -
Tender ID: 2022_NMC_838551_1
Tender ID: 2022_NMC_838508_1
The documents considered and reference made for framing the
opinion are listed below -
I. For Tender ID: 2022_NMC_838551_1
1. The tender documents submitted by
i. S & R Pest Control Services (Bid ID-4518812)
ii. Orion Pest Solutions Private Ltd (Bid ID-
4518965)
iii. Suraj Enterprises (Bid ID-4519736)
2. GST Portal (www.gst.gov.in) for GST Registration and
Return Summary
3. UDIN verification at https://udin.icai.org/search-udin
II. Tender ID: 2022_NMC_8385508_1
i. Digvijay Enterprises (Bid ID-4519876)
ii. Orion Pest Solutions Private Ltd (Bid ID-
4518954)
iii. S & R Pest Control Services (Bid ID-4518817"
35. In his opinion Shri Yogesh Kataria, Chartered Accountant has
opined that the turn-over of Respondent No.2 without GST is
Rs.5.64 Crores It is on the said opinion of the Chartered
Accountant, as has been argued by Respondent No.2, that the
decision to declare Respondent No.2 to have technically qualified
was taken by the Additional Commissioner. It has also been stated
on behalf of Respondent No.2, as already noticed above, that the
decision to technically qualify Respondent No.2 was taken not
Basavraj 33/43
5511.23-wp
only based on the opinion expressed by the Chartered Accountant,
but also keeping in view the provisions contained in paragraph
4.4.3.1 of the Procurement Manual which is extracted
hereinbelow:
"4.4.3.1 Granting extension of time for Tender process.
In order to have the tender competitive, it is necessary to
have minimum three tenderers. If less than three tenderers
participate in the tender process, the Purchase Officer
concerned shall give extension of time of minimum one week
first. However, even after granting such extension of time,
if it is noticed that less than three tenderers have
participated in the said tender process then, extension of
time of one week shall be granted for the second time and
thereafter, no such extension of time shall be granted.
While implementing the Tender process, if the situation
as mentioned below arises then, the below-mentioned
procedure should be followed.
A) If three or more than three tenders become
technically eligible then, the Purchaser Department shall
be at liberty to take further steps.
B) If two tenders become technically eligible then, if
there is a difference of (-)20 percent to (+) 10 percent
between the actual price of purchase and the estimated
price fixed earlier then, the Purchaser Department shall
be at liberty to accept the same. If the prices do not fall
within this Price Band then the the tender shall be invited
again.
C) If no tender or only one tender is declared as
technically eligible then, the tender should be reissued.
If the tender is for the amount of less than Rs. Ten
(10) lakhs then, the extension of time should be granted
only once.
If importance is given to complete the work in time,
the Purchase Officer, even the response of less than 3
Basavraj 34/43
5511.23-wp
tenders is received (even after granting extension of time
twice), may take decision to take further steps and shall
mention feasible grounds therefor. However, in such
situation, the Purchase Committee shall have to take extra
precaution to ensure the reasonableness of the price."
36. It is also contended by Respondent No.1 that the said
decision was taken keeping in view the urgency for controlling
Vector Borne Diseases by executing the work of spraying and
fogging which was in larger public interest.
37. The Tender Committee comprises of experts as is apparent
from a perusal of the minutes of meeting of the Tender Committee
held on 13th December 2022. The said minutes have been signed
by Biologist who is a Member, Chief Accounts and Finance Officer
who is its second Member and by the Chief Auditor who is the third
Member of the Tender Committee. Though constitution of the
Tender Committee, admittedly, also includes the Additional
Commissioner, however, the minutes dated 13 th December 2022
have been signed by three members, whereas, the Additional
Commissioner, who is the Chairman of the Tender Committee as
well, has written a separate note which runs contrary to the
opinion formed and expressed by the other three members of the
Tender Committee wherein it has clearly been held that
Basavraj 35/43
5511.23-wp
Respondent No.2 did not comply with tender condition No.6 which
rendered Respondent No.2 to be ineligible. The Additional
Commissioner, further records his opinion stating that certificate
submitted by Respondent No.2 has been checked and on
scrutinizing the said certificate it was found that its total turnover
was Rs.5.64 Crores and, therefore, it was eligible. However, what
is startling to note is that though in the Affidavit-in-Reply
Respondent No.1 states that to arrive at the decision of holding
Respondent No.2 to be eligible, reliance was placed on the opinion
expressed by Shri Yogesh Kataria, Chartered Accountant of the
Corporation, but no such mention of the opinion expressed by Shri
Yogesh Kataria has been made by the Additional Commissioner
while expressing his opinion contrary to the opinion expressed by
the rest of the three members of the Tender Committee. The
Additional Commissioner, in his separate note appended just
below the minutes of the meeting of the Tender Committee, has
relied on the Chartered Accountant certificate submitted by
Respondent No.2 and does not make any mention of the opinion
expressed by the Chartered Accountant of the Corporation, Shri
Yogesh Kataria, as has been asserted in the Affidavit-in-Reply.
Basavraj 36/43
5511.23-wp
38. If we peruse the opinion expressed by the three members of
the Tender Committee which stands recorded in the minutes of
the meeting dated 13th December 2022, we find that the three
members Committee has clearly stated that Respondent No.2 did
not comply with tender condition No.6 and hence, it became
ineligible. While recording this opinion, it has been clearly stated
that Respondent No.2 had produced the work orders for work of
spraying and fogging amounting to Rs.60,03,384/- only and,
therefore, it was found that it did not comply with condition No.6.
Though the minutes of the meeting dated 13th December 2022
have already been quoted above, however, we find it appropriate
to extract below the relevant portion of the said minutes where
discussion has been made about Respondent No.2 not fulfilling
tender condition No.6, which reads thus:
"1. As per the instructions given in respect of Condition No.06
in the tender, the Tender Committee got checked the CA
Certificate submitted by the Tenderer by the Municipal Chartered
Accountant. As per the same, as per the CA Certificate
submitted by Messrs S and R Pest Control Services, Nashik, its
Total Turnover (excluding GST) is 5.64 Crores and as per the
terms and conditions of the tender, in respect of Tender No.02,
there was a condition that the turnover should be 4.50 Crores.
According to the said condition, its Total Turnover is more than
the amount mentioned in the terms and conditions. However,
as per the objection raised by the Tenderers about Messrs S and
R Pest Control Services, Nashik not having experience of the
work of Spraying And Fogging as mentioned in Condition No.06
in the Tender, copies of the Work Order for the work of Spraying
Basavraj 37/43
5511.23-wp
and Fogging received by the said tenderer during the period from
the year 2018-19, 2019-20, 2020-21 and certificates for having
completed the said work were called for from it. Pursuant
thereto, Messrs S and R Pest Control Services, Nashik has
produced the Work Orders for the work of Spraying And Fogging,
totally amounting to Rs.60,03,384/- (in words - Rupees Sixty
Lac Three Thousand Three Hundred and Eighty Four only) and
therefore, it is seen that it does not comply with the Condition
No.06."
39. Thus, what we find in an unambiguous terms is that the
three members of the Tender Committee have recorded their
opinion about Respondent No.2 not fulfilling the tender condition
No.6 on the basis of discussion and also on the basis of the
documents produced by Respondent No.2, such as work orders
and the inference drawn by three members is that the work order
submitted by Respondent No.2 indicated that it had carried out
the work amounting to Rs.60,03,384/- alone, whereas, the
appendage at the end of the minutes by the Additional
Commissioner does not discuss the documents such as the work
orders submitted by Respondent No.2; rather he only relies upon
the Chartered Accountant certificate submitted by Respondent
No.2. At the cost of repetition, we may observe that though in
the Affidavit-in-Reply filed by Respondent No.1 it has been stated
that the decision by the Additional Commissioner declaring
Respondent No.2 was based on the opinion expressed by the
Chartered Accountant of the Municipal Corporation Shri Kataria,
Basavraj 38/43
5511.23-wp
however, no such mention is available on the note separately
appended by the Additional Commissioner.
40. Similarly, as per the averments made in Affidavit-in-Reply,
the decision to declare Respondent No.2 to have technically
qualified is said to have been taken by the Additional
Commissioner in the light of paragraph 4.4.3.1 of the Procurement
Manual which has been extracted in the preceding paragraph
No.35 of this judgment. The said provision provides for grant of
extension of time for tender process. According to this provision,
if less than three tenderers have participated, then extension of
one week's time shall be granted first, however, even after
granting such extension if it is noticed that three tenderers have
participated, extension of one week shall be granted second time
and thereafter no such extension of time shall be granted. It
further provides that if three or more than three tenderers become
technically eligible, then the Purchaser Department shall be at
liberty to take further steps, however, if only two tenderers
become eligible then, if there is a difference of (-) 20 % or (+)
10% between actual price of purchase than the estimated price
fixed earlier, then the purchase department shall be at liberty to
accept the same. Paragraph No.4.4.3.1(c) on which reliance has
Basavraj 39/43
5511.23-wp
been placed by Respondent No.1 provides that if no tenderer or
only one tenderer is declared as technically eligible, then the
tender should be reissued. It further stipulates that if importance
is to be given to complete the work in time, the Purchase Officer,
even if the response of less than three tenderers is received even
after granting extension of time twice, may take further decision
and shall give feasible grounds there for. However, in such
circumstances, the Purchase Committee shall have to take extra
precaution to ensure reasonableness of the price. Respondent
No.1 in its Affidavit-in-Reply has, thus, relied upon clause 4.4.3.1
of the Procurement Manual which provides that if completion of
work is required to be done in time then the Purchase Officer will
be at liberty to take further steps even if response of less than
three tenderers is received, provided that for taking further steps,
feasible grounds for the same has to be recorded.
41. Respondent No.1, in its Affidavit-in-Reply, though relies
upon clause 4.4.3.1(c) of the Procurement Manual, however, the
decision of the Additional Commissioner, which is appended below
the minutes of the meeting dated 13 th December 2022, does not
mention any reason for proceeding ahead despite the fact that
only one tenderer was found technically qualified.
Basavraj 40/43
5511.23-wp
42. In view of the aforesaid, we are of the opinion that the
Additional Commissioner, while appending his note and accepting
the technical bid of Respondent No.2 has not acted with requisite
fairness. The justification sought to be given in Affidavit-in-Reply
by Respondent No.2 for declaring Respondent No.2 to have
technically qualified, cannot be taken aid of to protect such a
decision taken by the Additional Commissioner of the Corporation
as such reasons or justification are missing in his note appended
to the minutes of the meeting of the Tender Committee. We have
already observed that three members of the Tender Committee
have clearly opined on the basis of the documents submitted by
Respondent No.2, including the work orders for work of spraying
and fogging submitted by Respondent No.2 amounting to total
Rs.60,03,384/- only that it did not fulfill the tender condition No.6.
Though the Chartered Accountant of the Corporation has given
opinion that the total turn-over of Respondent No.2 is Rs.5.64
Crores, however, three members of the Committee had
scrutinized the said opinion as well and have concluded that the
work orders submitted by Respondent No.2 evidenced total works
amounting to Rs.60,03,384/- only. The conclusion, thus, drawn
by three members of the Committee is based on the documents
Basavraj 41/43
5511.23-wp
and evidence available on record. The Additional Commissioner
has based his conclusion only on the Chartered Accountant
Certificate submitted by Respondent No.2 and has not made any
mention even of the opinion submitted by the Chartered
Accountant of the Corporation viz. Shri Yogesh Kataria. The
Additional Commissioner also does not assign any reason for
proceeding ahead with the process of tender as per the
requirement of paragraph 4.4.3.1(c) of the Procurement Manual.
43. Even the opinion expressed by Shri Yogesh Kataria,
Chartered Accountant, relied upon by the Municipal Corporation
does not discuss the documents, especially, the work orders
submitted by Respondent No.2 for the works relating to spraying
and fogging. On the contrary, the conclusion of the three members
Committee is based on evaluation of the documents such as the
work orders submitted by Respondent No.2 for the work relating
to spraying and fogging which according to three members
Committee aggregated to Rs.60,03,384/- only.
44. For the reasons discussed above, we have no hesitation to
hold that the decision-making process adopted in this case by the
Additional Commissioner of the Nashik Municipal Corporation/
Basavraj 42/43
5511.23-wp
Respondent No.1 declaring Respondent No.2 to have technically
qualified, was not fair or reasonable. Any decision based on such
unfair and unreasonable process of decision making cannot be
permitted to be sustained in the eyes of law.
ORDER
45. Resultantly, the Writ Petition is allowed and the decision
declaring Respondent No.2 to have technical qualified is hereby
quashed.
46. Respondent No.1 / Nashik Municipal Corporation is directed
to reissue the tender and process the same in the minimum
possible time as per the requirement.
47. There shall be no order as to costs.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
48. After pronouncement of the Judgment, the learned counsel
representing the respondent nos.1 and 2 pray for stay of the
Judgment. The prayer is rejected.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
Basavraj 43/43
