Bombay High Court
Dinkar Dnyandeo Rane vs The State Of Maharashtra Through Its ... on 3 January, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:273-DB
1 WP_14478.23___WP_14299.23 final.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.14478 OF 2023
Nitish Kailash Kapadne,
age 30 yrs, occ. Contractor,
R/o Plot no.57, Dwarka Nagar,
Jalgaon, Tq. & Dist. Jalgaon. Petitioner
VERSUS
1. The State Of Maharashtra
Through It's Secretary,
Urban Development Department,
Mantralaya, Mumbai.
2. The Municipal Council, Bhusawal,
Tq. Bhusawal, District Jalgaon,
through it's Chief Officer.
3. Asha Construction,
Government Contractor,
Khadka Road, Bhusawal,
Tq. Bhusawal, Dist. Jalgaon.
Through Shaikh Farooq Shaikh Yusuf.
4. Vaibhav Vikas Pachpande,
Government Contractor,
K.P. Club, Badri Plot,
Bhusawal, Tq. Bhusawal,
District Jalgaon-425201 Respondents
...
Mr. S.B. Yawalkar advocate for petitioner.
Mr. V.M. Jaware AGP for Respondent no.1 State.
Mr. Atul Pawar h/f Mr. B.S. Deshmukh, advocate for
respondent no.2.
Mr. S.S. Patil advocate for respondent no.3.
Mr. D.R. Kale & V.A. Chavan, advocate for respondent
no.4.
...
WITH
2 WP_14478.23___WP_14299.23 final.odt
WRIT PETITION NO.14299 OF 2023
Dinkar Dnyandeo Rane,
age 47 yrs, occ. Contractor,
R/o Ground Floor, Saishradha,
Plot no.6, Talvel, Tq. Bhusawal,
Dist. Jalgaon. Petitioner
VERSUS
1. The State Of Maharashtra
Through It's Secretary,
Urban Development Department,
Mantralaya, Mumbai.
2. Bhusawal Municipal Council,
through it's Chief Officer.
Tq. Bhusawal, District Jalgaon
3. Asha Construction,
Government Contractor,
Khadka Road, Bhusawal,
Tq. Bhusawal, Dist. Jalgaon.
Through Shaikh Farooq Shaikh Yusuf.
4. Vaibhav Vikas Pachpande,
Government Contractor,
K.P. Club, Badri Plot,
Bhusawal, Tq. Bhusawal,
District Jalgaon-425201 Respondents
...
Mr. Bhushan Mahajan, advocate for petitioner.
Mr. V.M. Jaware AGP for Respondent no.1 State.
Mr. Atul Pawar h/f Mr. B.S. Deshmukh, advocate for
respondent no.2.
Mr. S.S. Patil advocate for respondent no.3.
Mr. D.R. Kale & V.A. Chavan, advocate for respondent
no.4.
...
3 WP_14478.23___WP_14299.23 final.odt
CORAM : SMT. VIBHA KANKANWADI
AND
S. G. CHAPALGAONKAR, JJ.
Dated : January 03, 2024
COMMON JUDGMENT :
- (Per S.G. Chapalgaonkar, J.)
1. Rule. Rule made returnable forthwith. With
consent of the parties, heard finally.
2. The petitioners, in both the writ petitions,
approached this Court under Article 226 and 227 of the
Constitution of India, assailing the orders of disqualification
passed against them in tender no.15 of 2023, 16 of 2023 and
17 of 2023 dated 27.9.2023, published by Municipal Council,
Bhusawal. The petitioners have also prayed to quash the work
orders dated 24.11.2023 and 29.11.2023 issued to respondent
nos.3 and 4 in pursuance of tender notice.
3. The respondent no.2-Municipal Council, Bhusawal
had published three tender notices bearing no.15, 16 and 17 of
2023 for execution of works like construction of cement roads,
RCC gutter, security wall, installation of Paver blocks and other
sundry works. The tender notice specifies the bidders
qualifications for technical bid. Condition 'F' specifically
stipulates that the bidder must have RMC plant either owned
by himself or on lease hold basis placed within 15 kilometers
circumference of Bhusawal town. The documents in support of
such compliance was required to be furnished in envelop for
technical bid.
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4. The petitioners, who are duly registered
contractors with Public Works Department in requisite class
responded to tender notice and submitted bids in two
envelopes i.e. technical and financial bid. The preliminary
scrutiny of the documents contained in technical bids was
made by tendering authority during period from 18 th October,
2023 to 20th October, 2023. Petitioners were called upon to
clear the deficiencies regarding documents. It appears that on
31.10.2023, respondent no.2 Municipal Council issued a
communication to the petitioners thereby calling explanation
regarding functionality of RMC plant owned by M/s. Ayush
Procon Pvt Ltd., with whom the petitioners had entered into
an agreement of lease for supply of machinery. Although
petitioners replied to said communication, respondent no.2
Municipal Council declared both the petitioners disqualified for
the reason that the RMC plant of Ms. Ayush Procon Pvt Ltd was
found to be non-functional eventually condition 'F' under
technical bid has not been complied. The decision of the
respondent no.2 disqualifying the petitioners has been served
upon them on 8.11.2023 which is assailed before this Court.
During pendency of these petitions, work orders dated
24.11.2023 and 29.11.2023 have been issued in favour of
respondent nos.3 and 4 being the successful bidders,
consequently, petitioners assailed those the work orders by
incorporating the amended prayers.
5. The petitioners raised twofold challenge to the
impugned orders. Mr. Yawalkar, learned advocate appearing
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for one of the petitioner would submit that decision of
respondent no.2 is tainted with malafides. Condition
requiring RMC plant itself was uncalled for, however, the
petitioners complied same by producing the lease agreement
dated 27.9.2023 between petitioner and M/s. Ayush Procon
Pvt Ltd to provide machinery subject to payment of the hire
charges during currency of the contract with the Municipal
Council or other departments. The validity of the said
agreement was for the period of one year. Accordingly clause
'F' in technical bid was complied, however, at the instance of
the competitive bidders, the petitioners have been disqualified
giving false and incorrect reasons.
6. Per contra, learned advocates appearing for the
respondents would submit that specific complaint was received
to Municipal Council stating that the ready Mix concrete plant
(RMC) owned by M/s. Ayush Procon Pvt Ltd was not
functional. Even, the machinery from the said plant has been
shifted elsewhere. The petitioners could not offer satisfactory
explanation although they were given show cause to explain
the allegations in the complaint. As such, the petitioners have
been rightly disqualified in technical bid.
7. Having considered the submissions advanced, it
would be apposite to refer relevant observation of the Supreme
Court of India in the matter of N.G. Projects Limited Vs. Vinod
Kumar Jain and others reported in (2022) 6 Supreme Court
6 WP_14478.23___WP_14299.23 final.odt
Cases 127. Paragraph nos.22 and 23 of the judgment reads
thus :-
22. The satisfaction whether a bidder satisfies the
tender condition is primarily upon the authority
inviting the bids. Such authority is aware of
expectations from the tenderers while evaluating
the consequences of non-performance. In the tender
in question, there were 15 bidders. Bids of 13
tenderers were found to be unresponsive i.e., not
satisfying the tender conditions. The writ petitioner
was one of them. It is not the case of the writ
petitioner that action of the Technical Evaluation
Committee was actuated by extraneous
considerations or was malafide. Therefore, on the
same set of facts, different conclusions can be
arrived at in a bonafide manner by the Technical
Evaluation Committee. Since the view of the
Technical Evaluation Committee was not to the
liking of the writ petitioner, such decision does not
warrant for interference in a grant of contract to a
successful bidder.
23. In view of the above judgments of this Court, the
Writ Court should refrain itself from imposing it's
decision over the decision of the employer as to
whether or not to accept the bid of a tenderer. The
Court does not have the expertise to examine the
terms and conditions of the present-day economic
activities of the State and this limitation should be
kept in view. Courts should be even more reluctant
in interfering with contracts involving technical
issues as there is a requirement of the necessary
expertise to adjudicate upon such issues. The
approach of the Court should be not to find fault
with magnifying glass in its hands, rather the Court
should examine as to whether the decision-making
process is after complying with the procedure
contemplated by the tender conditions. If the Court
finds that there is total arbitrariness or that the
tender has been granted in a malafide manner, still
the Court should refrain from interfering in the
grant of tender but instead relegate the parties to
seek damages for the wrongful exclusion rather
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than to injunct the execution of the contract. The
injunction or interference in the tender leads to
additional costs on the State and is also against
public interest. Therefore, the State and its citizens
suffer twice, firstly by paying escalation costs and
secondly, by being deprived of the infrastructure for
which the present-day Governments are expected to
work.
8. Similarly, in case of Tejas Constructions and
Infrastructure (P) Ltd., Vs. Municipal Council, Sendhwa
reported in (2012) 6 SCC 464 certain guidelines have been laid
down for dealing with the challenge raised to the tender
process. Paragraph no.23 of the said decision reads thus :-
"23 From the above decisions, following principles
emerge :-
(a) the basic requirement of Article 14 is fairness in
action by the State, and non-arbitrariness in essence
and substance is the heartbeat of fair play. These
actions are amenable to the judicial review only to the
extent that the State must act validly for a discernible
reason and not whimsically for any ulterior purpose. If
the State acts within the bounds of reasonableness, it
would be legitimate to take into consideration the
national priorities;
(b) fixation of a value of the tender is entirely within the
purview of the executive and courts hardly have any
role to play in this process except for striking down
such action of the executive as is proved to be arbitrary
or unreasonable. If the Government acts in conformity
with certain healthy standards and norms such as
awarding of contracts by inviting tenders, in those
circumstances, the interference by Courts is very
limited;
(c) In the matter of formulating conditions of a tender
document and awarding a contract, greater latitude is
required to be conceded to the State authorities unless
the action of tendering authority is found to be
malicious and a misuse of its statutory powers,
interference by Courts is not warranted;
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(d) Certain preconditions or qualifications for tenders
have to be laid down to ensure that the contractor has
the capacity and the resources to successfully execute
the work;
and
(e)If the State or its instrumentalities act reasonably,
fairly and in public interest in awarding contract, here
again, interference by Court is very restrictive since no
person can claim fundamental right to carry on
business with the Government."
9. Bearing in mind aforesaid guidelines, if the facts of
the case in hand are evaluated, it is apparent that petitioners
have raised the challenge to the technical bid condition
requiring RMC plant. Pertinently, such challenge is raised after
the petitioners were declared disqualified owing to non-
compliance of such conditions. If petitioners had any objection
to such condition, it was open for them to challenge the tender
notice itself before participation in the tender process. The
challenge to the tender condition, particularly when petitioners
were held to be disqualified, appears to be afterthought. Even
otherwise, in the matter of formulating conditions of tender,
the latitude is required to be conceded to the tendering
authorities. In the present case, no malice or misuse of
statutory powers could be brought to the notice of this court.
Apparently, present tender is for construction of the cement
concrete roads. The requirement of RMC plant cannot be
branded as arbitrary or uncalled for. Tendering authority is
competent to incorporate such conditions to ensure that
contractor has capacity and resources to successfully execute
the work under the contract. Therefore, this Court would not
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sit in appeal against the decision of tendering authority as
regards to incorporating tender conditions. As observed, there
is nothing to demonstrate that condition so incorporated is
either irrational or arbitrary.
10. The next question that has been posed into service
is based on factual matrix. The petitioners have relied upon
lease agreement dated 27.9.2023 with M/s. Ayush Procon Pvt
Ltd, who agreed to provide requisite machinery of RMC plant
for carrying out the work under contract and contended that
they were compliant of tender condition. Perusal of agreement
shows that the description of the machinery or perpendiculars
of Hire charges are not specified. Although, the contract
stipulate submissions of papers of Ready Mix Concrete Plant
(RMC) alongwith the bond, such documents are not made part
of the agreement. Pertinently, on receipt of the complaint
dated 31.10.2023 from one of the bidder alleging RMC plant of
M/s Ayush Procon Pvt. Ltd being non-functional, respondent
no.2 Municipal Council made a communication to M/s Ayush
Procon Pvt. Ltd so also the petitioners to respond the
allegations in the complaint. Pertinently, while replying said
communication petitioners gave evasive reply stating that they
need not explain the aforesaid circumstances. No affidavit
from M/s. Ayush Procon Pvt Ltd has been produced on record
to controvert the allegations made in the complaint or
demonstrate RMC plant being functional. Even, M/s. Ayush
Procon Pvt Ltd failed to respond the communication of the
Municipal Council in this regard.
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11. Pertinently M/s.Ayush Procon Pvt Ltd had entered
into similar agreement with LMR Constrotek Pvt Limited
Jalgaon. Similar issue arose in the tender submitted by LMR
Constrotek. Explanation was called by respondent no.2 from
M/s. Ayush Procon Pvt Ltd in relation to that tender, wherein,
on 25.10.2023 M/s. Ayush Procon Pvt Ltd communicated that
they have shifted 90% of machinery to different project and
they are not in position to supply machinery to LMR
Constrotek Pvt Limited. The aforesaid circumstances are
sufficient to infer that the petitioners were not in a position to
comply the requirement of RMC plant. On the basis of lease
agreement with Ms. Ayush Procon Pvt Ltd., which appears to
be sham document. In view of the aforesaid circumstances this
court holds that no case is made out to interfere in the decision
of the respondent authorities. Writ petitions sans merit.
Hence, both the Writ Petitions are dismissed. Rule discharged.
(S. G. CHAPALGAONKAR, J.) ( SMT. VIBHA KANKANWADI, J. )
...
aaa/-
Signed by: SMT. A. A. ANKUSH
Designation: PS To Honourable Judge
Date: 09/01/2024 15:12:06
