Vishwambhar Pandurang Tayade vs The State Of Maharashtra Through ...
2023 Latest Caselaw 11365 Bom

2023:BHC-AUG:24245-DB

                                                       1                 WP / 13395 / 2023



                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        BENCH AT AURANGABAD

                                         WRIT PETITION NO. 13995 OF 2023

                  Vishwambhar S/o Pandurang Tayade,
                  Age : 42 years, Occu. : Business,
                  R/o. Shraddha Nagar, Ghirni Road,
                  Malkapur, Tq. Malkapur,
                  Dist. Buldhana                                                 .. Petitioner

                        Versus
                  1] The State of Maharashtra
                     Through the Secretary,
                     Urban Development Department,
                     Mantralaya, Mumbai - 32.

                  2] The District Collector,
                     Jalgaon, Dist. Jalgaon

                  3] The Chief Officer / Administrator,
                     Municipal Council, Erandol,
                     Tq. Erandol, Dist. Jalgaon                                  ..
                  Respondents

                                                        ...
                     Advocate for petitioner : Mr. T.M. Venjane and Mr. Bhushan Mahajan
                             AGP for the respondent - State : Mr. A.S. Shinde
                               Advocate for respondent no. 3 : Mr. D.B. Thoke
                                                        ...

                                                CORAM      : MANGESH S. PATIL &
                                                             NEERAJ P. DHOTE, JJ.

                                                DATE       : 6 NOVEMBER 2023

                  ORDER (MANGESH S. PATIL, J.) :

Heard. Rule. Rule is made returnable forthwith. At the

joint request of the parties, the matter is heard finally at the stage of

admission.

2 WP / 13395 / 2023

2. The petitioner is aggrieved by the conduct of the

respondent no. 3 in refusing to complete the tender process initiated

on 25-09-2023 and instead resorting to a fresh tender process by

publishing a Notice Inviting Tender (NIT) on 31-10-2023 for the

selfsame work.

3. The learned advocate Mr. Venjane submits that

pursuant to the NIT published by the respondent no. 3 on 25-09-

2023, he had submitted his bid. Technical as well as financial bids

were opened. He was found to be the lowest bidder and entitled to

have the contract for carrying out the construction. He was called

upon to deposit the security money which he did. However, the

authorities started insisting for a certificate of registration under the

Employees Provident Fund and Miscellaneous Provisions Act, 1952

(EPF Act). He tried to demonstrate that since there were less than

20 employees in his establishment, it was not necessary for him to

have the registration under the EPF Act. However, abruptly the

respondent no. 3 abandoned the process and has issued a fresh

NIT on 31-10-2023. The decision to abruptly abandon the process,

is arbitrary. He was not given any opportunity of being heard.

Though the respondent no. 3 has been pointing out that

communications were addressed to him, it was never received by

him. Those were issued on a wrong E-mail ID. Even otherwise,

3 WP / 13395 / 2023

pursuant to the Government circular dated 17-09-2019, the

petitioner ought to have been extended an opportunity of complying

with the deficiency and the petition be allowed. He may be granted

some time to comply with the deficiency and furnish the EPF

registration certificate.

4. The learned advocate for the respondent no. 3 tenders

across the bar affidavit in reply. Referring to the affidavit-in-reply, he

would submit that the respondent no. 3 had stipulated a condition of

furnishing EPF registration certificate. Instead of complying with

that stipulation in the NIT, he merely submitted a declaration that he

was not liable to have a registration under that EPF Act. He was

called upon to comply by issuing notice to him on 25-10-2023 and

27-10-2023. Since there was no response and since it was a

matter of public work, the respondent no. 3 decided to undertake a

fresh tender process and published the NIT on 31-10-2023.

5. He would submit that since the petitioner is invoking the

jurisdiction of this Court in tender matters, the powers of this Court

of undertaking a judicial review are very limited. There are no mala

fides and the decision to abandon the first process and to go for a

fresh tender is based on the judgment of the respondent no. 3. The

petitioner can very well apply again in the fresh tender process and

even if the period for submission of the bids in the fresh tender is to

4 WP / 13395 / 2023

expire by tomorrow, the respondent no. 3 is ready to extend it by a

week so that even now the petitioner can participate.

6. Obviously, the scope for judicial review in the tender

matters is circumscribed by several decisions of the Supreme

Court. It is only in matters, where the decision making process is

vitiated being arbitrary or prompted by mala fides that the High

Courts are expected to invoke the powers under Article 226 of the

Constitution. Suffice for the purpose to bear in mind the decisions

in the matters of :

1) Tata Motors Ltd. Vs. Brihan Mumbai Electric Supply & Transport Undertaking (BEST); 2023 SCC OnLine SC 671

2) N.G. Project Ltd. V. Vinod Kumar Jain; (2022) 6 SCC 127

3) Slippi Construction Contractors V. Union of India; (2020) 16 SCC 489

4) Afcon Infra Ltd. V. Nagpur Metro Rail Corp. Ltd.; (2016) 16 SCC 818

5) Jagdish Mandal V. State of Orissa; (2007) 14 SCC 517

7. As far as the stipulations in the tender document of

providing for specific terms are concerned, it is for the author of the

tender document to use his understanding and the discretion. This

Court cannot examine propriety or otherwise of a specific stipulation

in the tender document, like the present one, where there is

stipulation of EPF registration certificate. In this respect, one can

place reliance on the decisions in the matter of Michigan Rubber

5 WP / 13395 / 2023

(India) Limited Vs. The State of Karnataka and others; (2012) 8

SCC 216 and M/s. Galaxy Transport Agencies Vs. M/s. New J.K.

Roadways; (2020) SCC OnLine SC 1035.

8. Bearing in mind the afore-mentioned aspects at the

outset, it is necessary to note that it is not the case of the petitioner

that the stipulation regarding providing for furnishing EPF

registration certificate was incorporated designedly to favour

someone or to deprive him from participation in the tender process.

Whether in law, the petitioner is liable to have such EPF registration

certificate, cannot be scrutinized while considering his bid. The fact

remains that he was supposed to submit EPF registration

certification but had failed to do so.

9. True it is that in the light of the Government resolution

dated 17-09-2019, opportunity is expected to be extended to the

bidders to comply with the deficiencies after opening of the

technical bids. However, when even now, the petitioner does not

possess the EPF registration certificate, one wonders as to how

even if we are inclined to give him an opportunity to do so, his

request can be considered to ignore it and still direct the respondent

no. 2 to issue him the work order.

6 WP / 13395 / 2023

10. Interestingly, in spite of the stand of the respondent no.

3 to extend the period for submission of the fresh tender by a

reasonable time so that the petitioner can participate, the learned

advocate for the petitioner, on instructions, submits that he is not

ready to take that chance and insists for decision of the petition on

its own merits.

11. Once having seen that it was mandatory stipulation of

furnishing the EPF registration certificate, when admittedly, the

petitioner does not possess it, when no mala fides are attributable

to the respondent no. 3, in our considered view, this Court cannot

exercise the jurisdiction under Article 226 of the Constitution.

12. The petition is dismissed.

13. It is made clear that it would always be open for the

petitioner, in spite of dismissal of this writ petition, to participate in

the fresh tender floated by the respondent no. 3.

14. Rule is discharged.

    [ NEERAJ P. DHOTE ]                             [ MANGESH S. PATIL ]
          JUDGE                                            JUDGE

  arp/